i-fttiscnsi' 


mmmmm 


mmmmmm 


NEW  JERSEY  LAW  REPORTS 

VOLUME    XXXVI. 
VROOM  VII. 


REPORTS  OF  CASES 


ARGUED  AND  DETERMINED  IN  THB 


SUPREME  COURT, 


AND,   AT   LAW     IN   THE 


COURT  OF  ERRORS  AND  APPEALS 


STATE  OF   NEW  JERSEY. 


G^ARRET  D.  ^W.  VROOM   Reporter. 


VOL.  VII. 


SECOND    EDITION 


TRENTON,  N.  J.: 

THE  W.  S.  SHARP  PRINTING  COMPANY. 
1883. 


1.^ 


>^ 


This  volume  contains  the  opinions  delivered  in  the  Supreme 
Court,  from  November  Term,  1872,  to  February  Term,  1874  f 
and,  also,  the  opinions  delivered  in  cases  at  law  in  the  Court 
of  Errors  and  Appeals,  from  March  Term,  1872,  to  March 
Term,  1874. 

iv 


NEW   JERSEY   REPORTS. 


LAW  EEPORTS. 

COXE'S  REPORTS, 

-        -        -        - 

1 

vol 

PENNmOTON'S  REj 

L^ORTS,    - 

-     2 

SOUTHARD^S 

<i         _         _        _ 

2 

HALSTED'S 

(. 

-     7 

GREEN'S 

.'(___ 

3 

HARRISON'S 

(< 

-     4 

SPENCER'S 

u               _               _               _ 

1 

ZABRISKIE'S 

(( 

-     4 

DUTCHER'S 

<l           _           _           _ 

5 

VROOM'S 

(. 

-     7 

EQUITY  REPORTS. 

SAXTON'S  REPORTS,  -         .        .        .  i  vol. 

GREEN'S  "      -         -         -        -         -        -  3  " 

HALSTED'S        "  -        .        .        _        .  4  - 

STOCKTON'S      " 3  " 

BEASLEY'S         " 2  " 

McCARTER'S      " 2  " 

C.  E.  GREEN'S  " 9  '« 

V 


778593 


JUSTICES  OF  THE  SUPREME  COURT  DURING  THE 
PERIOD  OF  THESE  REPORTS. 


Hon.  mercer  BEASLEY,  Chief  Justice. 


ASSOCIATE  JUSTICES. 

Hon.  JOSEPH  D.  BEDLE, 
"      VANCLEVE  DALRIMPLE, 
"      GEORGE  S.  WOODHULL, 
"      DAVID  A.  DEPUE, 
"      BENNET  VAN  SYCKEL, 
"      EDWARD  W.  SCUDDER. 


ATTORNEY-GENERAL. 

Hon.  ROBERT  GILCHRIST. 

CLERK. 

BENJAMIN  F.  LEE,  Esq. 
vii 


JUDGES  OF  THE  COURT  OF  ERRORS  AND  APPEALS. 


Hon.  ABRAHAM  O.'  ZABRISKIE,  Chancellor, 

to  May  1st,  1873. 
"      THEODORE  RUNYON,  Chancellor. 

from  May  1st,  1873. 
"      MERCER  BEASLEY,  Chief  Justice. 
''      JOSEPH  D.  BEDLE, 
''      VANCLEVE  DALRIMPLE, 
"      GEORGE  S.  WOODHULL, 
"      DAVID  A.  DEPUE, 
"      BEN  NET  VAN  SYCKEL, 
"      EDWARD  W.  SCUDDER, 


Associate  Justices 
Supreme  Court. 


JUDGES  SPECIALLY  APPOINTED. 


Hon.  ROBERT  S.  KENNEDY,  to  March  22(1,  1872. 
"       EDMUND  L.  B.  WALES, 
"      JOHN  CLEMENT, 

"       JAMES  L.  OGDEN,  to  March  26th,  1873. 
«       CHARLES  S.  OLDEN,  to  February  26th,  1872. 
«       FRANCIS  S.  LATHROP, 
"       AMZI  DODD,  (vice  Kennedy,  term  expii-ed,)  from 

March  22d,  1872. 
«       CALEB  S.  GREEN,  (vice  Olden,  resigned,)  from 

February  27th,  1872. 
«       SAMUEL  LILLY,  (vice  Ogden,  term  expired,) 

from  March  26th   1873. 

CLERK. 

HENRY  C.  KELSEY,  Esq. 
viii 


A   TABLE   OF   CASES 

KEPORTED  IN  THIS  VOLUME. 


A. 

Acquackanonck  Water  Co.  ads.  Watson.  195 

Allen  et  al.  ads.  Fisher 203 

Armour  v.  McMichael 92 

Atlantic  National  Bank  ads.  Brainhall 243 

B. 

Bailey  ads.  Mayor,  &c.,  of  Hoboken 490 

Barcalow  ads.  Ordinary 15 

Beekman  ads.  Vreeland ]3 

Bennett  V.  New  Jersey  R.  R.  and  T.  Co 235 

Benson  et  al.  ads.  Montclair  R.  R.  Co 557 

Blake  ads.  State,  Brittin  et  al.,  Pros 442 

Booth  ads.  Wonderly 250 

Borden  ads.  Downey 460 

Boyd  V.  King , 134 

Bramhall  v.  Atlantic  National  Bank 243 

Bray  v.  Taylor 415 

Brehen  v,  O'Donnell 257 

c. 

Carragan,  Collector,  ads.  State,  Jones,  Pros,, 52 

Casper,  Collector,  ads.  State,  Sharp,  Pros 367 

■City  of  Hoboken  ads.  State,  Board  et  al.,  Pros 378 

Collector  of  Hunterdon,  ads.  State,  Herder,  Collector 963 

Columbia  Delaware  Bridge  Co.  v.  Geisse 537 

Commissioners  of  Cranford  ads.  State,  Cahill,  Pros  404 

Common  Council  of  Trenton  ads.  State,  Bodine,  Pros 19S 

Compton  ads.  Haney  and  Scattergood 507 

Consumers'  Coal  Co.  v.  Hutchinson 24 

Court  of  Common  Pleas  of  Newark  ads.  State,  ex  rel.  Sandford 72 

Cowenhoven  v.  Howell 323 

Cox  et  al.  T.  Marlatt 389 

Cox  ads.  Warwick 392 

Crane,  Collector,  ads.  State,  Winans,  Pros 394 

ix 


TABLE  OF  CASES  REPORTED. 


Crossley,  Collector,  ads.  State,  Shreve,  Pros 425 

Curtis  V.  Steever 304 

Cutter  ads.  State 125 

D. 

Davis  ads.  Glassford 34& 

Delaware,  Lack.  &  Western  K.  K.  v.  Ditton 361 

Ditton  ads.  Delev^^rp  Lack,  and  Western  K.  R 361 

Donnelly  ads.  Sisson    ...  433 

Downey  v.  Borden 460 

Dungan  ads.  Miller 21 

E. 

Easton  and  Amboy  R.  R.  Co.  ads.  State,  Nat.  Railway  Co.  Pros 181 

Edwards  et  al.  v.  Elliott 449 

Elliott  ads.  Edwards  et  al 449 

Excelsior  Carpet  Lining  Co.  ads.  Potts 301 

F. 

Fisher  v.  Allen  et  al 203 

Fitzpatrick  v.  Mayor  and  Aldermen  of  Jersey  City 120' 

G. 

Gaskill  V.  Overseer  of  Poor  of  Downe 35ft 

Geisse  ads.  Columbia  Delaware  Bridge  Co 537 

Geraghty  et  al.  v.  Hackley 459 

Gildersleeve  ads.  Hall 235 

Giassford  v.  Davis 348 

Gregory  ads.  Wilson 316 

H. 

Hackley  ads.  Geraghty  et  al 459 

Haight,  Collector,  ads.  State,  Morris  Canal  and  Banking  Co.,  Pros 471 

Haight,  Receiver,  ads.  State,  Long  Dock  Co.,  Pros 54 

Hall  V.  Gildersleeve 23& 

Halsey  v.  Paulison 406 

Haney  and  Scattergood  v.  Compton 507 

Hansom,  Collector,  ads.  State,  Hill,  Pros 50 

Harris  ads.  Kemble's  Adra'rs 526 

Henry  ads.  Hinds 328 

Hinds  V.  Henry 328 

Hoagland  et  al.  ads.  Todd  &  Rafferty 352 

Hoboken  Land  and  Improvement  Co.  v.  Mayor,  &c.,  of  Hoboken 640 

Hoflbrd  et  al.  ads.  Otterson  et  al 129 

Holmes  ads.  State • 62 


TABLE  OF  CASES  REPORTED.  xi 


Howell  ads.  Cowenhoven 323 

Hutchinson  ads.  Consumers'  Coal  Co 24 

I. 

Inhabitants  of  Township  of  Bernards  ads.  Morrison 219 

Inhabitants  of  Trenton  ads.  State,  Montgomery  et  al.,  Pros 79 

Inhabitants  of  Trenton  ads.  State,  Wilkinson  et  al.,  Pros 499 

Ivins  ads.  State 233 

J. 

Jersey  City  ads.  State,  Morris  and  Essex  R.  R.  Co.,  Pros 56 

Jones  V.  Mechanics'  Fire  Insurance  Co 29 

Jones  V.  Proprietors  of  Morris  Aqueduct 206 

Joslin  V.  New  Jersey  Car  Spring  Co 141 

Joyce  ads.  Shreve 44 

K. 

Kemble's  Adm'rs  v.  Harris 526 

King  ads.  Boyd 134 

Kloepping  and  Wife  ads.  Stellmacher 176 

L. 

Learned  ads.  United  States  Watch  Co 429 

Lehigh  Valley  R.  R.  Co.  v.  Stewart 259 

Leonard  V.  Stoui 370 

Lewis  V.  Perkins  et  ux 133 

M. 

Marlatt  ads.  Cox  et  al 389 

Matthews  ads.  Pennsylvania  R.  R.  Co 531 

Mattix  et  al.  ads.Steelman 344 

Mayor  and  Aldermen  of  Jersey  City  ads.  Fitzpatrick 120 

Mayor  and  Aldermen  of  Jersey  City  ads.  State,  Gregory,  Pros 166 

Mayor  and  Aldermen  of  Jersey  City  ads.  State,  Baxter,  Pros 188 

Mayor  and  Aldermen  of  Paterson  ads.  State,  Hampson,  Pros 159 

Mayor  and  Common  Council  of  Newark  ads.  State,  Little,  Pros 170 

Mayor,  &c.,  of  Hoboken,  ads.  State,  Hoboken  L.  &  I.  Co.,  Pros 291 

Mayor,  &c.,  of  Hoboken,  v.  Bailey 490 

Mayor,  &e.,  of  Hoboken,  ads.  Hoboken  Land  and  Imp't  Co 540 

Mayor,  &c.,  of  Newark,  ads.  State,  Alden,  Pros 288 

Mayor,  &c.,  of  Newark,  ads.  State,  Prot.  Foster  Home  Soc,  Pros.  478 

McMichael  ads.  Armour 92 

Mechanics'  Fire  Insurance  Co.  ads.  Jones 29 

Messenger  et  al.  v.  Pennsylvania  R.  R.  Co 407 

Midland  Railway  Company  ads.  Swayze 295 


xii  TABLE  OF  CASES  REPORTED. 


Miller  v.  Dungan 21 

Montclair  R.  R.  Co.  v.  Benson  et  al 557 

Morris  and  Essex  R.  R.  Co.  ads.  Weber 213 

Morris  and  Essex  R.  R.  Co.  v.  State 553 

Morrison  v.  Inhabitants  of  Township  of  Bernards 219 

Mount  ads.  Wolcott,  Johnson  &  Co 262 

Miilford  ads.  Peterson  and  Wife 481 

N. 

Neldon  v.  Smith 14S 

New  Jersey  Car  Spring  Co.  ads.  Joslin 141 

New  Jersey  R.  R.  and  T.  Co.  ads.  Bennett 225 

o. 

O'Donnell  ads.  Brehen 257 

Ordinary  v.  Barcalow 15 

Otterson  et  al.  v.  Hofford  et  al 129 

Overseer  of  Poor  of  Downe  ads.  Ga.skill 356 

P. 

Paulison  ads.  Halsey 406 

Pennsylvania  R.  R.  Co.  v.  Matthews 531 

Pennsylvania  R.  R.  Co.  ads.  Messenger  etal 407 

Perkins  et  ux.  ads.  Lewis 133 

Peterson  and  Wife  v.  Mulford 481 

Potts  ads.  Excelsior  Carpet  Lining  Co 301 

Pritchard  et  al.  ads.  State,  ex  rel.  Police  Com'rs  of  Jersey  City 101 

Proprietors  of  Morris  Aqueduct  ads.  Jones 206 

R. 

Rader  v.  Southeasterly  Road  District  of  Union 273 

Raff  ads.  Trenton  Water  Power  Co 335 

Ridsdale  ads.  Star  Brick  Co 229 

Roe,  Clerk,  &c.,  ads.  State,  Weehawken  Township,  Pros 86 

s. 

Sears  ads.  Steward 173 

Seymour  ads.  Slocum 138 

Shreve  v.  Joyce 44 

Sisson  V.  Donnelly 432 

Slocum  V.  Seymour 138 

Smith  ads.  Neldon 148 

Southeasterly  Road  District  of  Union  ads.  Rader 273 

Star  Brick  Co.  v.  Ridsdale  et  al 229 

State  V.  Cutter 125 


TABLE  OF  CASES  REPORTED.  xiii 


State  V.  Holmes 62 

State  V.  Ivins.. 233 

State  ads.  Morris  and  Essex  K.  K.  Co 553 

State,  Alden,  Pros.,  v.  Mayor,  &c.,  of  Newark 288 

State,  Banghart,  Pros.,  v.  Sullivan,  Collector 89 

State,  Baxter,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City 188 

State,  Board,  Pros.,  v.  City  of  Hoboken 378 

State,  Bodine,  Pros.,  v.  Common  Council  of  Trenton 198 

State,  Brittin  et  al ,  Pros.,  v.  Blake  et  al 442 

State,  Cahill,  Pros.,  v.  Commissioners  of  Cr  an  ford 404 

State,  Camden  and  Amboy  R.  R.  and  T.  Co.,  Pros.,  v.  Woodruff. 94 

State,  Charlier,  Pros.,  v.  Woodruflf. 204 

State,  Copeland,  Pros.,  v.  Village  of  Passaic 382 

State,  Gregory,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City 166 

State,  Hampson,  Pros.,  v.  Mayor  and  Aldermen  of  Paterson 159 

State,  Herder,  Collector  of  Amwell,  v.  Collector  of  Hunterdon 363 

State,  Hill,  Pros.,  v.  Hansom,  Collector 50 

State,  Hoboken  Land  and  Improv't  Co.,  Pros.,  v.  Mayor,  &c-,  Hoboken,  291 

State,  Jones,  Pros.,  v.  Carragan,  Collector. 52 

State,  Keeler,  Pros.,  v.  Tindall,  Collector 97 

State,  Little,  Pros.,  v.  Mayor  and  Common  Council  of  Newark 170 

State,  Long  Dock  Co.,  Pros.,  v.  Haight,  Receiver,  &c 54 

State,  Marshall,  Pros.,  v.  Street  Commissioner  of  Trenton 283 

State,  Montgomery,  Pros.,  v.  Inhabitants  of  Trenton 79 

State,  Morris  Canal  and  Banking  Co.,  Pros.,  v.  Haight,  Collector 471 

S<ate,  Morris  and  Essex  R.  R  Co.,  Pros.,  v.  Jersey  City 56 

State,  National  Railway  Co.,  Pros.,  v.  Easton  and  Amboy  R.  R.  Co....  181 
State,  Protestant  Foster  Home.Society,  Pros.,  v.  Mayor,  &c.,  of  Newark,  478 

State,  Rogers,  Pros.,  v.  Troth  et  al 422 

State,  Rutherford  Park  Association,  Pros.,  v.  Township  of  Union 309 

State,  Sharp,  Pros.,  v.  Casper, -Collector 367 

State,  Shreve,  Pros.,  v.  Crossley,  Collector 425 

State,  Weehawken  Township,  Pros.,  v.  Roe,  Clerk,  &c 86 

State,  Wilkinson  et  al..  Pros.,  v.  Inhabitants  of  Trenton 499 

State,  Winans,  Pros.,  v.  Crane,  Collector 394 

State,  ex  rel.  Police  Commissioners  of  Jersey  City,  v.  Pritchard  et  al...  101 

State,  ex  rel.  Sandford,  v.  Court  of  Common  Pleas  of  Morris 72 

State,  ex  rel.  Trustees,  &c.,  v.  Township  Committee  of  Readington,....     66 

Steelman  v.  Mattix  et  al 344 

Steever  ads.  Curtis 304 

Stelmacher  v.  Kloepping  and  Wife 176 

Steward  v.  Sears 173 

Stewart  ads.  Lehigh  Valley  R.  R.  Co 259 

Stillwell  V.  Tomlinson 359 

Stout  ads.  Leonard 370 

Street  Commissioner  of  Trenton  ads.  State,  Marshall,  Pbos 283 

Sullivan,  Collector,  ads.  State,  Banghart,  Pros 89 

Swayze  v.  Midland  Railway  Co 295 


xiv  TABLE  OF  CASES  REPORTED. 


T. 

Taylor  ads.  Bray 415 

Tindall,  Collector,  ads.  State,  Keeler,  Pros 97 

Todd  and  Kafferty  v.  Hoagland  et  al 352 

Tomlinson  ads.  Stillwell 359 

Township  Committee  of  Keadington  ads.  State,  ex  rel.  Trustees,  &c....     66 

Township  of  Union  ads.  State,  Rutherford  Park  Association,  Pros 309 

Trenton  Water  Power  Co.  v.  Rafi'. 335 

Troth  et  al.  ads.  State,  Rogers,  Pros 422 

u. 

United  States  Watch  Co.  r.  Learned 429 

V. 

Village  of  Passaic  ads.  State,  Copeland,  Pros 382 

Vreeland  t.  Beekman 13 

w. 

Warwick  v.  Cox 392 

Watson  V.  Acquackanonck  Water  Co 195 

Weber  v.  Morris  and  Essex  R.  R.  Co 213 

Wilson  T.  Gregory 315 

Wolcott,  Johnson  &  Co.  v.  Mount 262 

Wonderly  v.  Booth 250 

Woodruff  ads.  Stale,  Camden  and  Amboy  R.  R.  and  T.  Co,  Pros 94 

Woodruff  ads.  State,  Charlier,  Pros 204 


TABLE    OF    CASES    CITED 
IN  THIS  VOLUME. 


Abington  v.  North  Bridgewater 28  Pick.  176 373 

Ackley  V.  Elwell 5  Halst.  304 14 

Adams  V.  Saratoga  R.  R.  Co 11  Barb.  414 82 

iEtna  Ins.  Co.  v.  Tyler 16  Wend.  404 37 

Agnew  V.  Campbell 2  Harr.  291 64 

Alexander  v.  Bovle 4  C.  B.  635 332 

Allaire  V.  Hartshorne 1  Zab.  665 93 

Allen  V.Lake 18  Q.  B.  560 265 

Aller  V.  Shurts 2  Harr.  188 _ 444 

American  Print  Works  v.  Lawrence...  1  Zab.  248 343 

Ames  V.  Port  Huron  Co 11  Mich.  139 402 

Amoskeag  M'fg  Co.  v.  Goodale 46  N.  H.  53 342 

Andrews  V.  Durant 1  Kern.  35  .-. 452 

Annin  v.  Van  Doren's  Adm'rs  1  McCarter  135 467 

Anonymous Penn.  870 358 

Armstrong  V.  Kent 1  Zab.  519 467 

Ash  V.  Cummings ^ 50  N.  H.  591 343 

Azunar  v.  Casella L.  R ,  2  C.  P.  431 266 

B. 

Bannerman  v.  White 10  C.  B.  (N.  8.)  844 265 

Barclay  V.  Howell's  Lessee 6  Pet.  498 544 

Barkalow  V.  Johnson 1  Harr.  397 350 

Barker  v.  Bucklin 2  Denio  45 145 

Barr  V.Gibson 3  M.  &  W.  390 266 

Basch  V.  Humboldt  Ins.  Co 6  Vroom  429 39 

Bay  V.Cook 2  Zab.  343 255 

Beatty  v.  Lycoming  Ins.  Co 66  Penna.  St.  9 38 

Beck  V.Parker 65  Penna.  St.  262 346 

Behn  V.  Burness 3  B.  &  S.  755 265 

Beisiegel  v.  N.  Y.  Central  R.  R.  Co...  40  N.  Y.  9 536 

Belden  v.  Pitken  2  Caines'  R.  147 322 

Belford  v.  Crane 2  C.  E.  Gr.  265 488 

Bell  V.  Francis 9  C.  &  P.  66 256 

XV 


xvi  TABLE  OF  CASES  CITED. 


Belmont  Bank  v.  Hoge 35  N.  Y.  69 245 

Belvidere  V.  Warren  R  R.  Co 5  Vroom  193 384 

Bennington  Iron  Co.  v.  Rutherford...  3  Harr.  158  229 

Biddle  V.  Dancer Spenc.  634 205 

Bilbee  v.  London,  &c ,  R.  R.  Co 18  C.  B.  (N.  S.)  584 535 

Binninger  V.  Crater 4  Vroom  513 269 

Blessard  V.  Hirst 5  Burr.  2670 350 

Bluntv.  Boyd 3  Barb.  209 146 

Bodle  V.  Chenango  Ins.  Co 2  Comst.  53 37 

Bonaparte  V.  C.  &  A.  R.  R.  Co Bald.  C.  C.  205 458 

Bonnell  V.  Dunn 4  Dutcher  153 377 

Borrekins  v.  Bevan 3  Rawle  23 266 

Borries  v.  Hutchinson 18  C.  B.  (N.  S.)  445 271 

Boston,&c.,R.R.v.  Co.  of  Middlesex,  1  Allen  324 58 

Bower  V.  Jones 8  Bing.  65 330 

Boydv.  Siffkin 2  Camp.  326 154 

Boylan  v.  Meeker 4  Dutcher  294 131 

Brashford  V.  Buckingham  Co Cro.  Jac.  77 487 

Brazier's  Case 1  East  P.  C.  443 234 

Brecknock  School  District  v.  Frank- 

houser 58  Penna.  St.  380 498 

Brewster  v.  Chelsea  Ins.  Co 14  Gray  203 37 

V.  Thompson Coxe  32 25 

Bridge  V.  Wain ,-, 1  Stark.  504 270 

Britton  v.  R.  Ins.  Co 4  F.  &  F.  905 42 

Broad  V.  Thomas 7  Bing.  99 332 

Bronson  V.  Kinzie 1  How.  311 277 

Brooks  V.  Martin 2  Wall.  70 319 

Branson  V.  Shinn - 1  Green  250 306 

Buck  V.  Pickwell 27  Vt.  158 140 

Buckley  v.  Collin 1  Salk.  114 487 

Bull  V.  Price 7  Bing.  237 332 

Biimstead  v.  Dividend  Ins.  Co 2  Kern.  81 37 

Butcher  v.  Stewart 11  M.  &  W.  857 327 

Butler  V.  Palmer 1  Hill  330 384 

Butterfield  V.  O'Brien 23  N.  Y.  275 245 

Butz  V.  City  of  Muscatine 8  Wall.  575 276 

C. 

Cadwalader  V.  Howell 3  Harr.  138 368,377 

Calking  V.  Baldwin     4  Wend.  667 343 

Campbell  v.  Charter  Oak  Ins.  Co 10  Allen  213 42 

V.  Westcott 5  Cow.  270 155 

Carr  v.  Donne 2  Vent.  193 178 

Carron  v.  Martin 2  Dutcher  594 192,501 

Castner  V.  Styer 3  Zab.  247 136 

Catlin  V.  Springfield  Ins.  Co 1  Sumn.  C.  C.  434 36 


TABLE  OF  CASES  CITED.  xvii 


Cayuga  Co.  Bank  v.  Bennet 5  Hill  236 45 

♦  Chandelor  V.  Lopiis Cro.  Jac.  4 264 

Chanter  v.  Hopkins. 4  M.  &  W.  404 265 

Chapman  v.  Albany,  &c.,  K.  R 10  Barb.  360 82 

V.  New  Haven  R.  R.  Co....  19  N.  Y.  341 228 

Cholmondely  v.  Clinton 2  Jac.  &  W.  1 440 

Cincinnati  v.  White 10  Pet.  631 644 

City  Bank  v.  Bangs 3  Edw.  Ch.  95 494 

of  Lowell  V.  Hadley 8  Mete.  195 210 

Paterson  v.  Society,  &c 4  Zab.  386...  276,  479 

Clark  V.Hall 6  Halst.  78 327 

V.  McGuire .-.  11  Casey  259 45 

V.  Read 2  South.  486 25 

Clarke  v.  Spence 4  Ad.  &  E.  448 452 

Cliffy.  Midland  R.  Co L.  R.,  5  Q.  B.  258 535 

Cobb  V.  Davenport 3  Vroom  269 342 

CoUingwood  v.  Berkeley 15  C.  B.  (N.  S.)  145 256 

Columbia  Del.  Bridge  V.  Geisse 6  Vroom  558 538 

Ins.  Co.  V.  Lawrence 2  Pet.  25 36 

Commonwealth  v.  Bradford 9  Mete.  268 128 

T.  McLane 4  Gray  427 398 

V.  Reed 1  Gray  472 398 

V.  Ryan 5  Mass.  90 398 

v.Shed 1  Mass.  228 128 

Company  of  Carpenters  v.  Wayward..  1  Dong.  274 230 

Cook  V.  Hendrickson 1  Penn.  343 175 

V.  Welsh 9  Allen  350 330 

Cooke  V.  Fiske 12  Gray  291 332 

Cornell  v.  Le  Roy 9  Wend.  163 37 

Cory  V.  Thames  Ironworks  Co L.  R.,  3  Q.  B.  181 271 

Coster  v.  N.  J.  R.  E.  Co 4  Zab.  730 505,  539' 

Coyle  V.  Coyle 2  Dutcher  132 175 

Cramer  V.  Reford 2  C.  E.  Gr.  380 489 

Crittenden  v.  Welton 5  Cow.  165 342 

Cross  v.  Morristown 3  C.  E.  Gr.  305 201,  549 

Crowther  v.  Wheat 8  Mod.  243 178 

Cumberland  Bank  v.  Haney 3  Harr.  222 9a 

Curran  v.  Arkansas 15  How.  524 277 

Curtis  V.  Leavitt 15  N.  Y.  9 245 


Dallas  V.Hendry 2  Penn.  973 175 

Dalton  V.  Erwin 4  C.  &  P.  289 332 

Davis  V.  Charles  Riv.  R.  R.  Co 11  Cush.  506 18(> 

v.  Mayor  of  New  York 14  N.  Y.  506 82 

V.  Shields .- 26  Wend.  341 15i 

Deacon  v.  Shreve 2  Zab.  176 25 

Del.  &  R.  Canal  Co.  v.  Lee 2  Zab.  243 340 


xviii  TABLE  OF  CASES  CITED. 


Den  V.  Fen 5  Halst.  237 179 

V.  Hammell 3  Harr.  73 200 

V.  Humplireys 1  Harr.  28 467 

V.  MeAlUster 2  Halst.  46 25 

V.  Stretch 1  South.  182 418 

V.Young 3Zab.  481 467 

Derrickson  v.  White 3  Vroom  137 180 

De  Sewanberg  V.  Buchanan 5  C.  &  P.  343 268 

Dickerson  V.  Kobinson 1  Halst.  195 17 

Dimes  v.  Proprietors,  «&c 3  H.  L.  C.  759 398 

Doe  V.  Bancks 4  B.  &  Aid.  401 333 

Doughty  V.  Hope 3  Denio  595 193 

V.  Hope 1  Comst.  79 193 

Dummer  v.  Den Spenc.  86 543 

Dutch  Church  v.  Smock Saxt.  148 467 

E. 

Eastman  V.  Amoskeag  M'f'g  Co 44  N.  H.  143 343 

Eckert  V.  Keuter 4  Vroom  266 134 

Egbert  v.  Chew 2  Green  446 , 14 

Elliott  V.  Sleeper 2  N.  H.  525 441 

Ehvell  V.  Quash 1  Str.  20 49 

Emerson  v.  Thompson 16  Mass.  431 45 

Emery  v.  San  Francisco  Gas  Co 28  Cal.  345 480 

P. 

Farley  V.  Cleveland 4  Cow.  432 146 

V.Cleveland 9  Cow.  639 146 

Farmer  V.  Russell 1  B.  &  P.  296 317 

Feltmakers  v.  Davis 1  B.  &  P.  101 146 

Fennerv.  Evans 1  T.  R.  267 362 

Fish  v.  Hutchinson 2  Wils.  94 325 

Fitch  v.  Snedaker 38  N.  Y.  248 494 

Fitzgerald  V.  Dressier 7  C.  B.  (N.  S.)  374 327 

Fitzgerald's  Case 2  Caines'  R.  318 377 

Fletcher  v.  Auburn,  Ac,  E.  R.  Co 25  Wend.  462 342 

Forney  v.  Benedict 5  Barr  225 45 

Foulkes  V.  Young 2  Dutcher  132 175 

Fox  V.  Clifton 9  Bing.  115 256 

V.Harding 7  Cush.  516 270 

Francis  v.  Neave 3  B.  &  B.  26 178 

V.  Ocean  Ins.  Co 6  Cow.  404 37 

v.  Somerville  Ins.  Co 1  Dutcher  78 36 

Frey  v.  Fond  du  Lac 24  Wis.  204 498 

Fritz  V.  Thomas 1  Whart.  66 45 

P'urman  v.  Parke 1  Zab.  310 493 

Furnivall  v.  Coombes 5  M.  &  G.  736 255 


TABLE  OF  CASES  CITED.  xlx 


a. 

Gardner  v.  Baillie 1  B.  &  P.  32  63 

V.  Newburgh 3  Johns.  Ch.  162 , 343 

Garforth  V.  Bradley 8  Ve8.  670 487 

Garretson  v.  Kane 3  Dutcher  208 308 

Garwood  V.  Waterford 3  Dutcher  347 358 

Gilbert  v.  N.  A.  Ins.  Co 23  Wend.  43 37 

Glentworth  V,  Luther 21  Barb.  145 332 

Glover  v.  Powell 2  Stockt.  211 343 

Gompertz  v.  Bartlett 2  E.  &  B.  849 266 

Goodall  V.  Dolley 1  T.  K.  712 350 

Goodman  v.  Chase 1  B.  &  Aid.  297 327 

Gorrissen  v.  Perrin 4  C.  &  B.  681 154 

Gossler  v.  Eagle,  &c.,  Co 103  Mass.  331 267 

Gould  V.Brown 4  Halst.  163 175 

Green  v.  Armstrong 1  Denio  551 140,258 

Greene  V.  Briggs  1  Curt.  C.  C.  311 455 

Griscom  v.  Gilmore 1  Harr.  105 205 


Hadley  V.  Baxendale 9  Exch.  341 270 

Haines  v.  Campion 3  Harr.  49 194 

Hale  V.  Lawrence 1  Zah.  714 343 

V.  Eansom 4  C.  B.  85 154 

Hall  V.  Conder 2  C.  B.  (N.  S.)  22 333 

Hammon  V.  Huntley  4  Cow.  494 45 

Hamon  v.  Lord  Jermyn 1  Ld.  Raym.  189 178 

Hanness  v.  Smith  1  Zab.  496 361 

Hann  v.  McCormick 1  South.  109 444 

Hart  v.  West.  K.  R.  Co 13  Mete.  100 217 

Hathorne  V.  Hoboken 6  Vroom  247 493 

Hawkins' Appeal 8  Am.  L.  R.  205 346 

Hawkins  v.  County  Comm'rs 2  Allen  254 186 

V.  Peraberton 51  N.  Y.  204 265 

Henshaw  V.  Robbing 9  Mete.  83 266 

Hess  V.Cole 3  Zab.  116 200 

Hetfield  v.  Dow 3  Dutcher  440 146 

Hicks  v.  Beaufort 4  Bing.  N.  C 229,  349 

Hill  v.  Beach 1  Beas.  36 254 

V.Wells 6  Pick.  105 401 

Hoboken  V.  Gear 3  Dutcher  265..^ 147 

Holdipp  V.  Otway 2  Saund.  106 332 

Hooker  v.  N.  H.  &  N.  Co 15  Conn.  313 341 

Hooksett  V.  Amoskeag  M'f 'g  Co 44  N.  H.  106 342 

Home  V.  Midland  Railway  Co L.  R.,  8  C.  P.  134 271 

Horter  V.  Carpenter 2  C.  B.  (N.  S.)  56 333 


XX  TABLE  OF  CASES  CITED. 


Howland  v.  Lounds 51  N.  Y.  605 494 

Hunt  V.  Bate Dyer  272 496 


Inchbald  v.  Western  Co 17  C.  B.  (N.  S.)  733 333 

In  re  Josephine 39  N.  Y.  19 455 

Mayor,  &c.,  of  New  York 11  Johns.  77 59 

William  and  Anthony  Streets...  19  Wend.  680 58 

Wintermitz 18  Pitt.  L.  J.  61 346 

Insurance  Co.  v.  Weide 11  Wall.  438 43 


Jackson  T.  Robbins 16  Johns.  537 466 

Jackson  V.  Steam  Propeller 8  Am.  L.  Reg.  470 455 

Jacobs  V.  Kolff. 2  Hilt.  133 330 

Jaques  v.  Hulit 1  Harr.  38 176 

Jeffrey  V.  Woolsey 5  Halst.  123 138 

Johnson  V.  Beardsley 15  Johns.  3 45 

V.  Buck 6Vroom338 158 

V.Foster 12  Mete.  167 146 

V.  Gilbert 4  Hill  178 326 

-v.  McDonald 9  M.  &  W.  600 154 

V.  Vail 1  McCarter423 488 


Jones  Y.  Just L.  R.,  3  Q.  B.  197 267 

Josling  v.Kingsford 13  C.  B.  (N.  S.)  447 266 


Keenan  V.  Missouri  Ins.  Co 12  Iowa  126 38 

Kelner  v.  Baxter L.  R.,  2  C.  P.  174 ^ 255 

Kelsey  V.  Hibbs 13  Ohio  (N.  S)  340 327 

Key  port,  &c.,  Co.  v.  Farmers'  Trans. 

Co 3C.  E.  Gr.  13,511 551 

Kimball  v.  Hamilton  Ins.  Co 8  Bosw.  495 37 

Kloepping  V.  Stellmacher 6  C.  E.  Gr.  328 180 

Kock  V.  Emerling 22  How.  69 332 

Kutzmeyerv.  Ennis 3  Dutcher  371 327 


Laidler  v.  Burlinson 2  M.  &  W.  602 452 

Lampleigh  v.  Brathwaite Hob.  105 495 

Larason  v.  Lambert 7  Halst.  247 46 

Larimer  V.  McLean  Co 47  111.  36 498 

Layton  V.  Davis 1  Pen n.  405 175 

Leathe  V.  BuUard 8  Gray  545 123 

Leroy  v.  Blauvelt « 1  Green  341 ^ 630 


TABLE  OF  CASES  CITED.  xxi 


Levy  V.  Baillie 7  Bing.  349 42 

Lexington,  &c.,  E.  R.  Co.  v.  Apple- 
gate 8  Dana289 82 

Lloyd  V.  Wyckoff. 6  Halst.  218 355 

Lockhart  v.  Lichtenthaler 46  Pa.  St.  152 228 

Lockwood  V.  L^iek 8  C.  B.  (N.  S.)  603 332 

Lonie  V.  Tucker 4  C.  &  P.  15 268 

Lord  Say  and  Seale's  Case 10  Mod.  40 441 

Loring  v.  City  of  Boston 7  Mete.  411 494 

Losee  v.  Losee 2  Hill  609 131 

Lovatt  V.  Hamilton 5  M.  &  W.  639 154 

Lovegrove  v.  Fisher 2  F.  &  F.  128 273 

Lycoming  Ins.  Co.  v.  Updegraff. 40  Pa.  St.  311 35 

M. 

McBlair  V.  Gibbes 17  How.  232 319 

McCluskey  v.  Provident  Inst.,  &c 103  Mass.  301 489 

McCracken  V.  Hayward 6  How.  608 277 

McCullocb  V.  Dawes 9  D.  &  R.  385 45 

McGear  v.  Woodruff. , 4  Vroom  213 458,524 

McLaughlin  v.  Mutual  Ins.  Co 23  "Wend.  525 37 

Madick  V.  Marshall 16  C.  B.  (N.  S.)  387 256 

Maize  V.  State 4  Ind.  342 74 

Malins  v.  Freeman 4  Bing.  (N.  S.)  395 333 

Marshall  V.  Lynn 6  M.  &  W.  109 157 

Martin  V.  Carron 2  Dutcher  228 192 

v.SomervilleWater  Power  Co.,  3  Wall.,  Jr.,  206 278 

V.  Steele 2  Penn.  718 175 

Mason  v.  Haile 12  Wheat.  370 277 

V.  Harv«y 8  Exch.  819 35 

V.  Sainsbury 3  Doug.  61 217 

Masterton  v.  Mayor  of  Brooklyn 7  Hill  61 270 

Tklayorof  Baltimore V.  Proprietors,  &c.,  7  Md.  517 60 

Jersey  City  V.  Morris  Canal,  1  Beas.  553 545 

Lynn  Eegis  v.  Payne 10  Rep.  120 230 

Mellorv.  Spateman 1  Saund.  340 231 

Merchants'  Ex.  N.   Bank  v.  Ware- 
house Co 49  N.  Y.  641 245 

Meriden  Brit.  Co.  v.  Zingsen 48  N.  Y.  247 327 

Merrittv.  Millard 4  K eyes  208 319 

Methodist  Church  v.  Hoboken 4  Vroom  13 544 

Midberry  v.  Collins 9  Johns.  345 64 

Middleton  v.  Qnigley 7  Halst.  352 357 

Millard  v.  Baldwin 3  Gray  484 146 

Miller  v.  Doolittle 2  South.  845 373 

Mixer  v.  Coburg 11  Mete.  559 267 

Moffatt  V.  Laurie 15  C.  B.  583 332 


xxii  TABLE  OF  CASES  CITED. 


Moore  V.  Campbell 10  Exch.  323 \bT 

V.  Magrath 1  Cowp.  9 440 

Muigan  V.  Chester  Co 56  Penna.  St.  466 498 

Morgan  v.  Moore 3  Gray  319 545 

Morrell  v.  Buckley Spenc.  669 136 

M.  &  E.  R.  R.  Co.  V.  Central  R.  R. 

Co 2  Vroom  206 187 

Morse  V.  Gould 1  Kern.  282 277 

Mumma  V.  Potomac  Co 8  Pet.  281 277 

Murphy  V.  Chicago 29  111.  279 82. 

N. 

Nat.  Bank  of  Whitehall  v.  Lamb 50  N.  Y.  95 247 

Nelson  v.  Boynton 3  Mete.  396 326 

Newark  Lime,  &c.,  Co.  v.  Mayor 2  McCarter  64 547 

New  Jersey  Express  Co.  v.  Nichols...  4  Vroom  435 269 

New  Orleans  V.  United  States 10  Pet.  717  547 

Nicholson  V.  Chapman 2  H.  Bi.  254  238 

Nicol  V.  Godts 10  Exch.  191 266 

North  River  Meadow  Co.  v.  Shrews- 
bury Church 2  Zab.  424 391 

Norton  V.  R.  &  S.  Ins.  Co 7  Cow.  645 35 

O. 

Old  Colony,  &c.,  R.  R.  Co.  v.  Co.  of 

Plymouth 14  Gray  156 5& 

Olden  V.  Hallett 2  South.  466 390 

Ollivant  V.  Bayley 5  Q.  B.  288 267 

Olmsteadv.  Niles 7  N.  H.  522 140- 

O'Neil  V.  Buffalo  Ins.  Co 3  Comst.  122 37 

Ordinary  v.  Hart 5  Halst.  64 17 

V.  Smith's  Ex'rs 3  Green  92 20^ 

Osborne  v.  Tunis „ 1  Dutcher  634 192 

Osgood  V.  Lewis 2  H.  &  Gill  495 266 

Owen  V.  Warburton 1  N.  R.  32G 26 

Owners,  &c.,  v.  Mayor  of  Albany 15  Wend.  374 59 

P. 

Page  V.  Hardin 8  B.  Mon.  648 119 

Palmer  v.  Grand  Junction  Railway...  4  M.  &  W.  749 413 

Parker  V.  Commonwealth 6  Barr  507 74 

V.  Overman 18  How.  142 193 

Parsell  v.  State 1  Vroom  530 401 

Parsons  V.  Russell 11  Mich.  113 455 

Paterson  v.  Society,  &c 4  Zab.  385 74 

Bank  V.  Hamilton 1  Green  159 530 


TABLE^  OF  CASES  CITED.  xxiii 


Paterson  and  Newark   R.  K.  Ck).  v. 

Stevens 5  Vroom  532 552 

Patterson  v.  McVay 9  Watts  482 241 

Peacock  v.  New  York  Ins.  Co 1  Bosw.  338 40 

Pearce  v.  Atwood 13  Mass.  324 398 

Peck  V.  Freeholders  of  Essex 1  Zab.  656 397 

V.  Botsford 7  Conn.  172 45 

People  V.  Lambier 5  Denio  9 548 

V.  Mayor  of  Brooklyn 4  Comst.  420 70 

V.  Morris 13  Wend  325 276 

V.  Sands 1  Johns.  78 555 

V.  Whaley 6  Cow.  661 127 

Perrine  V.  Evans • 6  Vroom  221 372 

V.  Farr 2  Zab.  356 192 

Phillips  V.  City  of  Hudson 2  Vroom  143  141,  192 

Philliskirk  v.  Pluckwell 2  M.  &  S.  393 487 

Pierrepontv.  Barnard 5  Barb.  364 258 

Planche  V.  Coburn ". 8  Bing.  14 333 

Pocklington  v.  Hatton 8  Mod.  220... 63 

Potts  V.  N.  J.  Arms  and  Ord.  Co -.  2  C.  E.  Green  395 278 

V.  Trenton  Water  Power  Co 1  Stockt.  592 278 

Powell  V.  Horton 2  Bing.  N.  C.  668 266 

Power  T.  Barl>an 4  Ad.  &  E.  473 268 

Pratt  V.Taylor Cro.  Eliz.  61 487 

Price  V.  N.  J.  R.  R.  Co 2  Vroom  229 147,  430 

Prickett  v.  Badger 1  C.  B.  (N.  S.)  296 332 

Priest  v.  Citizens'  Ins.  Co 3  Allen  604 37 

Princeton  Turnpike  v.  Gulick 1  Harr.  167 147 

Piimpelly  V.  Green  Bay  Co 13  Wall.  166 343 

Putney  v.  Day .'. 6  N.  H.  430 140 

Q- 

Quidortv.  Pergeaux 3  C.  E.  Green- 47 2 488 

<iuincy  V.  City  of  Paterson 3  Dutcher  35 340 

R. 

Randall  V.  Grover Coxe  151 25 

V.  Raper E.,  B.  &  E.  84 273 

Ranger  v.  Great  Western  R.  Co 5  H.  L.  C.  72 399 

Read  v.  Ranne 10  B.  &  C.  438 332 

Rede  v.  Farr 6  M.  &  S.  121.... 155 

Ref.  D.  Church  v.  Ten  Eyck .-.,.  1  Dutcher  40 131 

Reginav.Reed Car.  &  M.  306 127 

V.White 4  Ad.  &E.  (N.S.)  101 224 

Reock  V.  Mayor  of  Newark 4  Vroom  129 221 

Rex  V.  Clarke 2  Stark.  241 235 

V.  Hall 3  C.  &  P.  409 127 


xxiv  TABLE  OF  CASES  CITED. 


Rex  V.  Loxdale „...  1  Burr.  447 „ .  209^ 

V.  Pease 4  B.  &  Ad.  30 555 

Reynolds  V.  Hamilton 7  Watts  420 45 

Rice  V.  Foster 4  Harring.  479 74 

Richards  V.  Richards 2  B.  &  Ad.  447 487 

Richardson  v.N.Y.  Central  R.  R.  Co.,  45  N.  Y.  486 536 

Robinson  v.  N.  Y.  &  E.  R.  R.  Co 27  Barb.  512 383 

Rockingham  Ins.  Co.  v.  Bosker 39  Me.  253 217 

Ronkendorffv.  Taylor's  Lessees 4  Pet.  349 192,  290 

Roper  V.  Lendon 1  E.  &  E.  825 35 

Rosa  V.  Butterfield 33  N.  Y.  G65 245 

Rcss  V.  E.  &  S.  R.  R.  R.  Co 1  Green's  Ch.  422 185 

Roumage  v.  Mechanics'  Ins.  Co 1  Green  110 36 

Russell  V.  NicoU 3  Wend.  112 154 

S. 

Saltarv.  Adm'rofSaltar 1  Halst.  405 46 

Sandford  v.  C.  W.  &  E.  R.  R.  Co.......  24Penna.St.  378 412 

Santo  V.  State 2  Iowa  265 74 

Sayre  V.  Austin 3  Wend.  496 390 

Schenck  v.  Mercer  Ins.  Co.. 4  Zab.  447 36 

V.Stevenson 1  Penn.  387 25 

Scholey  v.  Walton 12  M.  &  W.  509 45 

Schroeder  V.  Ehlers 2  Vroom  50 398 

Scorll  V.  Boxall 1  Y.  &  J.  395 140 

Scott  V.Dow 2  Green  350 528 

V.  Marshall 2  C.  &  J.  238 178 

Seixaa  v.  Woods 2  Caines  48 264 

Selden  v.  Del.  &  Hud.  Canal  Co 24  Barb.  362 342 

Selleck  y.  French 1  Am.  L.  Cas.  509 390 

Sharp  V.  Speir 4"Hill76 192,  290 

V.  Taylor 2  Phil.  801 318 

Sharpe  v.  Johnson -. 4  Hill  92 192 

Shawmut  Co.  v.  People*8  Ins.  Co 12  Gray  535 38 

Bheppard  v.  Steele 43  N.  Y.  52 455 

Sherwood  V.  RefflJe 7  Hill  431 192 

Shields  V.  Lozear 5  Vroom  496 181 

V.  Pettee 2  Sandf.  262 154 

Shipherd  v.  White „ • 3  Cow.  32 64 

Sikes  V.  Ransom 6  Johns.  279 64 

Sinnickson  v.  Johnson 2  Harr.  150 340,  403- 

Skillman  v.  Skillman 2  Beas.  403. 487 

Sloan  V,  Wattles 13  Johns.  158 178 

Smith  v.  McGuire 3  H.  &  N.  270 270 

V.  Surman 9  B.  &  C.  561 139 

Snellv.  Moses 1  Johns.  96 265 

Southern  L.  I.  &  T.  Co.  v.  Parker 17  N.  Y.  51 245- 


TABLE  OF  CASES  CITED.  xxv 


Stark  V.  Hunton 2  Green's  Ch.  211 46 

State  v.Apgar 2  Vroom  358 69 

V.  Bergen 5  Vroom  438. 385 

V.  Bergen 3  Vroom  491 501 

V.  Bishop 5  Vroom  45 498 

V.  Blauvelt 4  Vroom  36 205 

V.  Branin 3  Zab.  484„ 276 

V.Brown 3  Dutcher  13 550 

V.  Brown  20  Wis.  287 498 

V.  City  of  Hudson 3  Dutcher  214 172,  501 

V.  City  of  Hudson 5  Dutcher  105 172,  506 

V.  Clarke 1  Dutcher  54 201 

T.  Donnelly 2  Dutcher  465 64 

—  V.  Elizabeth 1  Vroom  365 887 

V.  Elizabeth 2  Vroom  547 387 

V.  Everett 3  Zab.  378 506 

V.  Fischer 2  Dutcher  129 205 

V.  Freeholders  of  Hudson 3  Zab.  206 501 

V.  Freeholders  of  Hndson 4  Zab.  719 501 

V.  Fuller 5  Vroom  227 293,  397 

V.  Fulton 1  Vroom  440 487 

V.Gardner 5  Vroom  327 172 

V.  Garrabrant 3  Vroom  444 90 

V.  Green 3  Harr.  179 205 

V.  Greenleaf. 5  Vroom  442 90 

V.  Haight 6  Vroom  40 57 

V.  Hancock 6  Vroom  537 95 

V.  Hardcastle 3  Dutcher  143..,. 90 

V.Hardin 5  Vroom  79 311 

T.  Jersey  City 4  Zab.  662 193,  387,  501 

V.  Jersey  City 1  Dutcher  309 501 

V.  Jersey  City 2  Dutcher  444 172,  189,  193,  501 

V.  Jersey  City 4  Dutcher  500 172,  193,  292 

V.  Jersey  City 5  Vroom  32 203,  287 

V.  Jersey  City 5  Vroom  390 85 

V.  Lewis 2  Zab.  564 200 

V.  McChesney 6  Vroom  548 311 

V.Miller 3  Zab.  383 300 

V.  Newark 1  Dutcher  399..172, 193,387,397,  501 

V.Newark 3  Dutcher  186 58,385,480 

V.  Oliver 4  Zab.  129 205 

V.  Orange 3  Vroom  49 501 

V.  Parker 26  Vt,  350 74 

V.  Paterson 5  Vroom  163 85 

V.  Ross 3  Zab.  517 368,  377 

V.  Ten  Eyck 3  Harr.  373 194,  205 

V.  Town  of  Bergen 1  Vroom  307 172 

V.  Town  of  Union 4  Vroom  350 69,385 


xxvi  TABLE  OF  CASES  CITED. 


State  V.  Van  Buskirk 1  Zab.  87 205 

V.  Van  Gieson 3  Green  340 192 

— —  V.  Water  Comm'rs 1  Vroom  247 194 

V.  Williamson 4  Vroom  77 427 

Baxter,  V.  Jersey  City 7  Vroom  188 288 

Bodine,  v.  Tremton 7  Vroom  198 287 

Durant,  v.  Jersey  City 1  Diitcher  310 173 

Evans,  v.  Jersey  City 6  Vroom  381 191 

Hampson,  V.  Paterson 7  Vroom  159 506 

Kean,  V.  Bronson 6  Vroom  468 86 

Love,  V.  Freeholders,  &c 6  Vroom  269 367 

Morris  C.  &  B.  Co.,  v.  Haight...  7  Vroom  271 551 

■ Prot.  Foster  Home,  v.  Kewark.,  6  Vroom  157^ 58 

Woodruff,  V.Orange 3  Vroom  49 186 

Stebbins  V.  Walker 2  Green  90 390 

Steelman  v.  Steelman  1  Harr.  66 147 

Stobart  v.  Dryden 1  M.  &  W.  615 132 

Stocking  V.  Hunt 3  Denio  274 277 

Stokes  V.  Middletown 4  Dutcher  32 200 

Stryker  V.  Merseles 4  Zab.  544 528 

Sturges  V.  Crowninshield 4  Wheat.  122 277,  345 

Sullivan  V.  Alexander 18  Johns.  3 ~ 178 

Swain  v.  Seamens 9  Wall.  272 157 

Sweet  V.  Colgate 20  Johns.  196 264 

Swift  V.  Tyson 16  Pet.  1 93 

T. 

Taintor  v.  Morristown 4  Vroom  57 „ 201 

V.  Morri«town 4  C.  E.  Green  56 201 

Taylor  v.  Merchants'  Ins.  Co 9  How.  404 36 

Teal  V.  Auty 2  B.  &  B.  99 140 

Tenant  v.  Elliott 1  B.  &  B.  3 317 

Ten  Eyck  v.  Del.  &  R.  Can.  Co 3  Harr.  200 340 

Thatcher  v.  Powell's  Lessee 6  Wheat.  119 192,  290 

Thompson's  Case 1  Wend.  45 377 

Thompson  V.  Eastburn 1  Harr.  100 306 

Thorogood  v.  Bryan 8  M.,  G.  &  S.  116 226 

Thorpe  V.  Thorpe 1  Ld.  Raym.  235 440 

Thurlow  V.  MassachusettB 5  How.  504 77 

Tombs  V.  Alexander ^ 101  Mass.  255 332 

Tomlinson  V.  Stiles 4  Dutcher  201 23,  157 

V.  Stiles 5  Dutcher  426 23,  157 

Tuffv.  Warman 2  C.  B.  (N.  S.)  750 228 

Tullock  V.  Dunn E.  &  Moo.  416 ^ 44 

U. 

Underhill  v.  Agawam  Ins.  Co 6  Cash.  440 ^ 37 


TABLE  OF  CASES  CITED. 


V. 

Van  Doren  v.  Staats Penn.  887  321 

Van  Rensselaer  v.  Snyder.— 3  Kern.  300 277 

Vaughan  v.  Taff  Vale  R.  Co 5  H.  &  N.  679 654 

Vaughn  V.  Fuller 2  Str.  1246 349 

Verree  v.  Hughes 6  Halst.  91 391 

Von  Hoffman  v.  City  of  Quincy 4  Wall.  535 276 

Von  Wormer  v.  Mayor  of  Albany....  15  Wend.  263 286 

Vose  V.  Cockraft 44  N.  Y.  415 455 

W. 

Waite  V.  N.  E,  R.  Co El.,  B.  &  El.  728 228 

Walker  V.  Tirrell 101  Mass.  257 333 

Walh^h  V.  Trevanioa 15  Ad.  &  E.  (N.  S.)  733 440 

Walter  V.  Glats 29  Iowa  437 „ 241 

Warde  v.  Stuart 1  C.  B.  (N.  S.)  88 330 

Warren  v.  Leland 2  Barb,  614 ,..  258 

Washington  Ins.  Co.  t.  Price Hopk.  Ch.  2 398 

Watson  V.  Hoel Coxe  136 355 

V.Murray 8  C.  E.  Green  257 319 

Waterman  V.  Merrill 4  Vroora  379 528 

Webster  v.  Hudson  R.  R.  Co 38  N.  Y.  260 228 

Whitcomb  y.  Whiting 1  Sm.  L.  Cas.  857 46 

Wieler  v.  Shillizzi 17  C.  B.  619 266 

Williams  v.  Carwardine 4  B.  &  Ad.  621 497 

V.  Lessee 3  Burr.  1886 326 

V.  N.  Y.  Cent,  R.  Co 18  Barb.  222 82 

Williamson  v.  Amwell 4  Dutcher  271 300 

Willing  V.  Swasey 1  Browne  123 26 

Wilson  V.  Cunningham 3  Cal.  241 84 

V.  Marsh 2  Beas.  289 391 

V,  Moore 4  Harr.  186 64 

Windsor  v.  Lombard 18  Pick.  55 267 

Winter  v.  Ketcham 2  T.  R.  45 362 

Wood  V.  Jefferson  Co.  Bank 9  Cow.  194 231 

Woods  V.  Russell 5  B.  &  Aid.  942 452 

Woodward  v.  Bennett 43  N.  Y.  237 319 

Wright  V.  Child L.  R.,  1  Ezch,  354 353 

V.  Sharpe 1  Salk.  228 63 

V.  Sharpe 11  Mod.  175 63 

Wyenhamer  V.  People 2  Kern.  378 455 

Y. 

Yates  V.  White « 4  Bing.  N.  C.  272 217 

Young  V,  Hunter 2  Seld.  204 333 

Youngs  V.  Little 3  Green  1 93 


CASES  DETERMINED 

IN  THE 

SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE  OF   NEW  JERSEY, 

AT  NOVEMBER  TERM,  1872. 


VKEELAND  v.  BEEKMAN. 

A  geueral  averment  of  the  performance,  on  the  part  of  tne  plaintiff,  of 
the  terms  of  a  contract,  requiring  him  to  perform  conditions  prece- 
dent, is  sufficient,  by  virtue  of  the  twenty-fifth  section  of  the  supple- 
ment to  the  practice  act. 

In  covenant.     On  demurrer  to  declaration. 

Argued  at  June  Term^  1872,  before  Beasley,  Chief  Jus- 
tice, and  Justices  Bedle,  Woodhull  and  Scudder. 

For  the  plaintiff,  A.  K.  Brown. 

For  the  defendant,  Gaston  and  Bergen. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  This  is  an  action  of  covenant, 
on  an  agreement  for  the  exchange  of  lands.  The  declaration 
is  demurred  to,  on  the  ground  that  it  does  not  show,  by  special 
averment,  a  performance,  or  a  readiness  to  perform,  on  the 
side  of  the  plaintiff.     The  allegation  in  this  respect,  in  the 

Vol.  VII.  1  13 


14  NEW  JERSEY  SUPREME  COURT. 


Vreeland  v.  Beekraan. 


declaration,  is  the  common  formula,  that  the  plaintiff  hath 
■well  and  truly  performed,  fulfilled  and  kept,  all  things  in  the 
€^\d  agreement  contained,  on  his  part  and  behalf  to  be  per- 
formed, fulfilled  and  kept,  according,  &c. 

The  covenant  alleged  to  have  been  broken,  is  obviously  a 
dependent  one.  It  is  that  the  defendant  did  not  convey  his 
lauds  to  the  plaintiff;  this  he  was  not  called  upon-  to  do, 
unless,  at  the  time  specified,  the  plaintiff  was  ready  to  deliver 
a  conveyance  on  his  side.  These  were  mutual  covenants, 
constituting  the  whole  consideration  on  both  sides,  and,  hence, 
they  were  mutual  conditions,  the  one  precedent  to  the  other; 
so  that,  according  to  the  ordinary  rules  of  pleading,  it  was 
necessary  for  the  plaintiff  to  show  a  particular  performance  of 
such  conditions  on  his  part.  A  mere  averment  of  perform- 
jance  was  not  sufficient,  but  he  was  bound  to  set  forth  the 
facts,  60  that  the  court  could  see  that,  iu  point  of  law,  he  had 
.compli€<l  with  his  agreement.  With  respect  to  this  matter, 
the  usual  forms  of  pleading  and  the  authorities,  are  undeni- 
ably clear.  1  Chitty's  PL  349 ;  2  lb.  554,  555 ;  Egbert  v. 
Chew,  2  Green  446 ;  Ackley  v.  Elwell,  5  Halst.  304. 

iConsequently,  if  the  test  of  this  issue  were  the  ordinary 
Tiiles  of  pleading,  this  demurrer  would  have  been  sustained. 
But  there  is  a  circumstance  which  appears  to  have  escaped 
the  attention  of  counsel.  A  new  rule,  with  respect  to  tin's 
subject,  has  been  established  in  this  state  by  statute.  Section 
twenty -five  of  the  act  to  simplify  the  pleadings  and  practice 
of  the  courts  of  law,  and  v/hich  is  a  transcript  of  15  and 
16  Viet,  ch.  76,  §  57,  enacts  in  these  words,  viz.  "It 
shall  be  lawful  for  the  plaintiff  or  defendant,  in  any  action, 
to  aver  performance  of  conditions  precedent  generally,  and 
the  opposite  party  shall  not  deny  such  averment  generally, 
but  shall  specify,  in  his  pleading,  the  condition  precedent,  the 
[performance  of  which  he  intends  to  contest." 

The  object  of  this  provision  seems  to  be  to  facilitate  the 
pleading  by  relieving  the  plaintiff  from  the  burthen  of  a 
circumstantial  statement  of  his  performance  of  conditions 
precedent,  which,  on  many  occasions,  are  not  the  subjects  of 


NOVEMBER  TERM,  1872.  15 

Ordinary  v.  Barcalow. 

dispute.  lu  lieu,  therefore,  of  those  particular  statements  of 
facts  showing  a  performance,  which,  at  common  law,  were 
requisite,  this  section  authorizes  a  general  averment  to  that 
effect,  leaving  it  for  the  defendant  to  specify  the  particular 
condition  precedent,  the  performance  of  whicii  he  intends  to 
controvert. 

This  provision  is  directly  applicable  in  the  present  case, 
and  legalizes  the  declaration  in  the  point,  with  respect  to 
which  objection  is  taken. 

The  plaintiff  must  have  judgment. 


THE   OKDINARY  v.   FAERINGTON   BAECALOW  AND   JOHN 
H.  WHITENACK. 

1.  A  failure  to  settle  a  final  account  in  the  Orphans  Court,  is  a  breach 
of  the  bond  of  an  executor,  given  by  force  of  the  fifth  section  of  the 
supplement  of  1855  to  the  Orphans  Court  act. 

2.  The  non-payment  of  a  legacy  cannot  .be  assigned  as  a  breach  of  such 
bond,  without  showing  a  settlement  of  the  executor's  accounts  in  the 
Orphans  Court,  and  a  balance  in  his  hands  after  the  payment  of  debts. 

3.  Unless  the  decedent  dies  intestate  there  can  be  no  decree  for  dis- 
tribution. 

4.  The  damages  on  the  bond  of  an  executor  cannot  be  assessed  at  law ; 
the  money  recovered  must  be  distributed  by  the  Ordinary. 


This  was  an  action  of  debt  on  a  bond  given  by  Farrington 
Barcalow,  as  executor  of  William  Barcalow,  and  John  H. 
Wiiiteuack,  as  his  surety. 

The  testator  died  in  1837,  and  in  1847  the  executor  filed 
his  account,  which  was  excepted  to  by  one  of  the  children  of 
deceased,  but  nothing  was  further  done  with  this  account. 

In  1863  tiie  executor  became  bankrupt,  and  on  the  16th  of 
July,  1864,  the  executor,  on  the  application  of  the  widow  of 
the  intestate,  was  compelled  to  give  the  bond  in  suit,  by  force  of 
placitum  fifty-three  of  the  Orphans  Court  act.    Nix.  Big.  651.* 

In  the  declaration  the  condition  of  the  bond  was  set  out, 

*Eeo.,p.778,lU7. 


16  NEW  JERSEY  SUPREME  COURT. 

Ordinary  v.  Barcalow. 

and  in  assigning  a  breach,  it  was  averred  that  the  executor 
"  had,  in  his  hands  and  possession,  $2000,  belonging  to  the 
estate  of  the  said  William  Barcalow,  deceased,  and  which 
from  thence  hitherto  hath  so  remained  in  his  hands  as  such 
executor,  and  of  which  sum  of  $2000,  the  yearly  interest 
thereof,  was,  by  the  last  will  and  testament  of  William  Bar- 
calow, deceased,  bequeathed  and  directed  to  be  paid  to  one 
Ann  Barcalow,  widow  of  the  said  William  Barcalow,  de- 
ceased, during  the  time  that  she  should  remain  such  widow. 
Tliat  the  said  Ann  Barcalow,  was  on,  &c.,  the  widow  of  said 
William  Barcalow,  deceased,  and  from  thence,  &c.,  and  now 
is  and  hath  been  since,  &c.,  entitled  to  have  and  receive  the 
yearly  interest,  income  and  profits,  of  the  investment  of  the 
said  §2000." 

The  breach  assigned  is,  that  this  interest  money  has  not 
been  paid,  and  that  the  executor  has  converted  it  to  his  own 
use. 

The  first  plea  is  non  est  factum,  and  the  second  and  third 
[ileas,  general  performance. 

The  matter  came  before  the  court  on  a  case  stated. 

Argued  at  November  Term,  1872,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Woodhull  and  Scudder. 

For  plaintiff,  H.  31.  Gaston. 

For  defendant,  /.  £>.  Bariine  and  J.  N.  Dilts. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  parties  have  agreed,  in 
this  case,  upon  certain  facts,  and  from  the  way  in  which  the 
legal  points  are  presented,  in  the  written  briefs  of  counsel,  it 
would  seem  that  it  was  the  expectation  that  the  opinion  of 
the  court  should  be  expressed  on  the  case  thus  made,  without 
regard  to  the  pleadings. 

Looking  at  the  matter  in  this  view,  it  appears  to  be  plain 
that  the  plaintiff  is  entitled  to  judgment.  It  is  an  admitted 
fact  in  the  case,  that  the  executor  has  failed  to  settle  any  final 


NOVEMBER  TERM,  1872.  17 

Ordinary  v.  Barcalow. 

account  in  the  Orphans  Court.  Indeed,  it  is  expressly  stated 
that  no  account  has  ever  been  settled  by  him.  1  do  not  see 
how  it  is  to  be  doubted,  that  this  is  a  breach  of  the  bond 
sued  on.  It  has  been  entirely  settled,  by  a  series  of  decisions 
in  this  court,  that  the  failure  to  render  an  account,  in  due 
form  of  law,  is  a  breach  of  an  administrator's  bond,  and  may 
be  assigned  as  such,  in  an  action  by  the  Ordinary.  Dickerson 
V.  Robinson  et  al.,  1  Halst.  195;  Ordinary  v.  Hart,  5  Halst. 
64. 

It  is  true  that  it  is  one  of  the  special  conditions  of  the  bond 
of  an  administrator,  that  he  will  make  a  "just  and  true 
account  of  his  administration  "  within  a  specified  time  ;  but 
this  is  no  ground  for  discrimination,  because  the  same  duty  is 
incumbent  on  the  executor  by  force  of  the  statute,  and  the 
condition  of  the  bond  in  suit  is,  "that  he  shall  truly  and 
faithfully  perform  his  duty  as  such  executor,  and  the  trust  in 
him  reposed."  This  stipulation  bound  him  to  settle  his 
account  according  to  law,  in  the  Orphans  Court,  and  the 
non-performance  of  such  stipulation  was  a  clear  breach  of  the 
bond. 

Although  this  is  the  result  of  the  facts  as  stated,  such 
result  is  entirely  aside  from  the  issue  raised  on  the  pleadings. 
The  breach  of  the  bond,  as  it  stands  assigned  on  the  record 
is,  that  the  executor  has  failed  to  pay  the  widow  her  annuity. 
To  this  assignment  of  a  breach,  the  defendant  replies  by  an 
averment  of  general  performance,  which  is  not  a  proper  course 
of  pleading,  as  it  raises  an  issue  only  by  indirection.  But 
the  fault  is  one  of  form  merely,  and  has  not  been  excepted  to, 
the  question  may,  therefore,  be  considered  with  propriety, 
whether  a  failure  to  pay  the  widow  her  annuity  can  be  set  up 
as  an  infringement  of  the  condition  of  this  bond. 

I  have  failed  to  see  how  an  allegation  of  an  omission,  or 
neglect  to  pay  a  legacy,  will  show,  with  sufficient  certainty,  a 
forfeiture  of  this  bond.  The  simple  facts  that  an  executor 
has  moneys  in  his  hands,  and  that  he  refuses  to  pay  a  legatee 
the  amount  of  his  bequest,  do  not  constitute,  prima  facie,  a 
breach  of  duty.     The  creditors  are   to  be  paid  before  the 


18  NEW  JERSEY  SUPREME  COURT. 

Ordinary  v.  Barcalow, 

legatees,  and  the  consequence  is,  that  to  show  a  default  on  the 
part  of  the  executor,  with  respect  to  the  claims  of  the  latter, 
it  must  be  made  to  appear  that  all  just  demands  against  the 
estate  have  been  satisfied.  The  executor  is  put  in  the  wrong^ 
only  by  proof  of  a  settlement  with  creditors,  and  a  residue  of 
assets  which  he  neglects  or  refuses  to  apply,  according  to  the 
directions  of  the  will. 

Nor  can  the  question  whether  creditors  have  been  paid,  be 
tried  in  a  suit  on  the  bond  to  the  Ordinary ;  and  in  this  respect 
such  suit  differs  from  one  against  the  executor  alone.  The 
sum  of  money  secured  by  the  bond,  is  a  fund  in  which  all  the 
creditors  are  interested,  and  consequently  a  legatee  cannot 
found  his  right  to  a  portion  of  this  common  fund  on  proof  of 
the  satisfaction  of  the  debts  due  to  creditors  in  a  suit  to  which 
they  are  not  parties.  Creditors  have  the  primary  right  in 
the  fund,  and  it,  on  this  account,  would  be  unjust,  and  con- 
trary to  fundamental  rules,  to  dispose  of  any  portion  of  such 
fund  in  their  absence.  The  consequence  is,  that  the  question 
whether  the  legal  demands  against  the  estate  have  been  liqui- 
dated, and  whether  anything  remains  to  be  distributed  under 
the  will,  must  be  settled  in  the  Orphans  Court,  in  a  proceeding 
in  which  all  persons  having  an  interest  may  be  heard.  Indeed 
it  would  often  be  impossible  to  determine  such  an  inquiry  in 
a  procedure  such  as  the  present  suit.  If  we  suppose  no 
account  to  have  been  rendered  in  the  Orphans  Court,  or  no 
rule  to  limit  the  time  within  which  the  claims  of  creditors 
were  to  be  presented  to  have  been  taken,  it  would  seem  quite 
impracticable,  in  a  suit  on  the  bond  to  the  Ordinary,  to  ascer- 
tain in  any  satisfactory  mode,  whether  or  not  any  part  of  the 
money  secured  by  that  instrument  should  be  assigned  to  the 
payment  of  legacies.  On  tiie  trial  at  law,  in  which  the 
creditors  cannot  participate,  how  can  the  debts  due  to  such 
creditors  be  fairly  investigated.  It  is  manifest  that  in  such 
a  proceeding,  a  legatee  would  often  be  enabled  to  present  a 
probable  case,  showing  seemingly  the  satisfaction  of  the  debts 
due  from  the  estate,  but  it  would  be  unjust  and  contrary  to 
the  spirit  of  the  statutes  relating  to  the  subject,  to  permit  hini 


NOVEMBER  TERM,  1872.  19 

Ordinary  v.  Barcalow. 

to  appropriate  any  part  of  these  moneys  which  are  not  de- 
signed for  his  exclusive  use  on  such  an  ex  parte  hearing.  WheD 
the  suit  for  the  legacy  is  not  upon  the  bond,  but  is  brought 
by  the  legatee  against  the  executor  solely,  the  creditors  have 
no  interest,  and  on  a  pleaofpZene  administravit,  the  conditioa 
of  the  estate  may  properly  enough  be  inquired  into,  for  iu 
such  suit,  the  executor  being  singly  concerned,  the  burtheu 
would  be  upon  him  to  show  a  proper  administration  of  the 
assets.  But  where  the  bond  is  prosecuted,  and  a  legatee  is- 
seeking  to  take  to  himself  part  of  the  moneys  secured  by  it, 
in  derogation  of  the  rights  of  creditors,  the  issue  whetiier 
there  is  a  surplus  after  the  payment  of  debts,  affects  others 
besides  the  parties  to  the  suit.  The  creditors,  I  think,  have 
a  right  to  insist  that  the  bond,  which  is  their  security,  shall 
not  be  put  in  suit  by  a  party  who  cannot  show  in  any  legal 
mode  that  he  has  any  interest  in  it,  or  has  suffered  anything 
by  reason  of  its  breach.  The  remedy  of  the  legatee  is  simple, 
easy,  and  eflFectual.  All  he  has  to  do  is  to  compel  the  executor 
to  an  adjustment  of  the  affairs  of  the  estate  before  the  proper 
tribunal,  and  after  the  balance  has  been  struck,  if  a  surplus 
remains,  and  his  claim  is  not  paid,  to  resort  to  a  suit  on  the 
bond.  With  a  proceeding  so  ready  to  his  hand,  I  do  not 
think  he  should  have  a  license  to  call  upon  a  court  of  law  to 
attempt  to  investigate  and  adjudge  as  to  the  condition  of  an  un- 
settled estate,  with  respect  to  assets.  The  inconvenience  of  such 
a  course  is  enough  to  condemn  it.  Besides,  it  would  be  some- 
times nugatory,  as  for  example,  where  a  surplus  of  assets 
should  be  made  to  appear  in  the  action  at  law,  and  on  the 
subsequent  settlement  of  the  accounts  in  the  Orphans  Court, 
under  the  order  of  the  Ordinary,  in  the  mode  hereinafter 
mentioned,  a  deficit  of  assets  should  be  shown.  In  such 
event,  the  latter  finding  would  prevail,  and  would  evince  the 
judgment  in  the  suit  at  law  to  have  proceeded  on  a  false 
ground.  In  all  cases  of  unsettled  administrations,  there 
must  be  a  reckoning  before  the  Orphans  Court,  before  the 
moneys  secured  by  the  bond  can  be  dispensed,  and  it  seems 
therefore  naturally  to  follow,  that  a  party  should  not  have  is. 


20  NEW  JERSEY  SUPREME  COURT. 

Ordinary  v.  Barcalow. 

iu  his  power  to  enforce  a  double  settlement,  the  one  in  the 
common  law  court,  in  order  to  show  a  non-performance  of  the 
conditions  of  the  bond,  and  the  other  in  the  Orphans  Court, 
for  the  purpose  of  a  distribution  of  the  sura  recovered.  For 
these  reasons,  I  think  that  where  a  legatee  sues,  as  in  the 
present  instance,  he  is  bound  to  show,  when  he  relies  for  a 
breach  on  a  failure  to  pay  the  money  due  to  himself,  that  on 
a  settlement  in  the  Orphans  Court,  a  surplus  of  assets  was 
exhibited.  When  an  executor  has  failed  to  have  his  final 
account  settled,  that  fact,  as  has  been  already  observed,  is  suf- 
ficient to  constitute  a  breach. 

The  principle  which  forbids  the  legatee  from  alleging,  as  a 
breach  of  the  present  bond,  the  existence  of  assets,  and  the 
non-payment  of  his  legacy,  is  similar  to  that  which  prevents 
one  of  the  next  of  kin  of  an  intestate  from  relying  on  similar 
averments  with  respect  to  his  distributive  share.  In  both 
cases,  there  are  other  facts  necessary  to  constitute  a  breach  of 
duty  in  the  personal  representative.  In  the  one  case,  the 
executor  is  not  liable  to  the  legatee,  unless  it  has  been  decreed 
that  there  is  a  surplus  in  his  hands  after  the  payment  of 
debts ;  in  the  other,  the  administrator's  liability  depends  on 
the  existence  of  a  decree  for  distribution.  That  non-payment 
of  a  distributive  share  in  the  absence  of  a  judicial  order 
directing  it,  will  not  operate  as  a  breach  of  an  administrator's 
bond,  is  settled  by  the  decision  in  the  case  of  The  Ordinary 
V.  Smith's  Executors,  3  Green  92. 

I  observe,  in  the  brief  of  counsel,  it  is  insisted  that  a 
legatee  cannot  sue  on  the  bond,  until  there  has  been  adecree 
of  the  Orphans  Court  for  distribution.  But  this  is  clearly 
untenable  ;  as  in  case  of  an  executorship,  there  can  be  no  such 
decree.  The  will  itself  directs  how  the  surplus,  after  a  settle- 
ment of  the  debts,  is  to  be  disposed  of,  and  the  Orplians 
Court  has  no  capacity  to  construe,  for  this  purpose,  such 
instruments.  A  decree  of  that  character  might  mislead  the 
executor  or  other  persons,  but  it  could  have  no  legal  effect. 

The   second    question  raised  iu  the  case   is,    whether  the 


NOVEMBER  TERM,  1872.  21 

Miller  v.  Diingan. 

damages,  sustained  by  the  legatee,  can  be  assessed  at  law  in 
the  present  suit. 

This  does  not  seem  to  be  an  open  question.  By  the 
express  provision  of  the  thirteenth  section  of  the  act  which 
authorizes  the  bond  to  be  taken  of  the  executor,  it  is  directed 
that  the  moneys  recovered  "  shall  be  applied  towards  making 
good  the  damages  sustained  by  the  non-performing  the  con- 
ditions thereof,  in  such  manner  as  the  Ordinary  shall,  by  his 
sentence  or  decree,  direct."  Nix.  Dig.  652.*  It  thus  appears, 
that  these  bonds  are  put  upon  the  same  footing  with  respect 
to  the  mode  of  the  distribution  of  the  moneys  secured  by 
them  with  bonds  given  by  administrators.  There  are  several 
cases  which  decide  most  conclusively,  that  in  suits  on  bonds 
of  the  last  named  kind,  there  can  be  no  assessment  of  dam- 
ages at  law.  The  leading  case  is  that  of  The  Ordinary  v. 
Mart,  5  Halst.  65.  The  course  prescribed  in  these  authorities 
is,  when  a  breach  has  been  shown,  to  take  judgment  for  the 
penalty.  The  Ordinary  will  control  this  judgment,  and  dis- 
pense the  money  to  the  parties  entitled  to  it,  in  the  order 
and  in  the  measure  prescribed  by  law. 

The  plaintiff  is  entitled  to  judgment,  on  the  ground  that 
the  executor  has  not  settled  his  accounts  in  the  Orphans 
"Court.  The  pleadings  can  be  remodeled,  so  as  to  raise  up 
the  proper  issue. 


MILLER  V.  DUNGAN. 


1.  A  judgment  obtained  in  a  proceeding,  by  attachment  against  a  non- 
resident debtor,  who  does  not  appear  to  such  suit,  will  not  form  a 
legal  foundation  for  an  action. 

2.  The  proceeding  is  in  rem,  and  has  no  effect  except  with  respect  to  the 
property  attached. 

On  demurrer  to  pleas. 

Argued  at  June  Term,  1872,  before  Beasley,  Chief  Jus- 
tice, and  Justices  Bedle,  Woodhull  and  Scudder. 

*£ey.,jj.  788,  I  164. 


22  NEW  JERSEY  SUPREME  COURT. 

Miller  v.  Dungan. 

For  the  plaintiff,  F.  F.  WeatcoU. 
For  the  defendant,  F.  Kingman. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  This  case  comes  before  the 
court  on  demurrer. 

The  declaration  is  founded  on  a  judgment  obtained  by  the 
plaintiff  against  the  defendant  in  this  court.  To  this  the 
first  plea  is  nul  del  record,  upon  which  issue  has  been  joined, 
and  it  is  the  second  and  third  pleas,  to  which  objection  is 
taken.  Each  of  these  pleas  has  the  same  aspect,  and  is 
intended  to  give  rise  to  the  same  question,  which  is,  whether 
an  action  will  lie  on  a  judgment  obtained  on  proceedings 
commenced  by  an  attachment  under  the  act  for  the  relief  of 
creditors  against  absconding  and  absent  debtors. 

A  preliminary  point,  however,  is  taken  on  the  side  of  the 
plaintiff,  that  these  pleas  are  not  sufficiently  definite  in  their 
statements,  and  that  they  do  not  present  for  consideration  the 
question  just  expressed.  The  objection  is,  that  although  it 
is  averred  that  the  judgment  in  controversy  is  founded  on  a 
proceeding  begun  by  an  attachment,  it  is  not  shown  that  the 
defendant,  in  the  course  of  such  proceeding,  did  not  appear, 
as  under  the  statute  he  has  the  privilege  of  doing,  in  which 
case  the  judgment  would  be  in  personam,  and  not  in  rem. 
This  exception  would  prevail,  if  well  founded  in  fact;  but  I 
think  there  are  statements  in  the  first  of  the  pleas  demurred 
to,  from  which  it  must  be  inferred,  conclusively,  that  there 
was  no  appearance  in  the  attachment  suit.  The  allegations 
thus  relied  on,  are  those  which  succeed  the  averment  that  the 
suit  was  under  the  attachment  act,  and  which  are  to  the  effect 
that  the  auditors  should  make  "  sale  and  assurance  of  the 
goods  and  chattels,  lands  and  tenements  of  the  defendant, 
which  were  attached."  This  statement  necessarily  excludes 
the  idea  that  the  defendant  appeared  to  the  action,  and  makes 
it  sufficiently  certain  that  the  judgment  is  in  rem,  and  not  in 
'personam.  I  think  the  plea,  in  point  of  substance,  is  sufficient. 


NOVEMBER  TERM,  1872.  2a 

Miller  v.  Dungan. 

And  also,  with  regard  to  the  general  question  involved,  I 
think  the  defendant  has  the  law  in  his  favor.  That  a  judg- 
ment in  attachment,  where  there  is  no  appearance,  has  no 
effect  except  upon  the  property  attached,  appears  to  me  en- 
tirely clear.  The  proceeding  is  altogether  statutory,  and  has 
no  other  or  greater  effect  than  such  as  has  been,  either  in 
express  terras  or  by  reasonable  intendment,  given  to  it  by  the 
legislative  will.  The  judgment  resulting  from  the  procedure 
is  subject  to  the  same  rule,  for  it  is  altogether  a  statutory,  and 
in  no  sense  a  common  law  judgment.  The  contention  that 
the  judgment  is  to  have  the  force  of  one  against  the  person, 
is  not  consistent  with  common  justice,  or  with  the  several  pro- 
visions of  the  statute  in  its  general  spirit.  A  law  whicli 
should  provide  that  all  the  creditors  of  a  non-resident,  upon 
finding  property  in  this  state,  might  come  in  and  establish, 
in  a  conclusive  form,  their  claims,  no  matter  how  large  in 
amount,  would  not  be  likely  to  receive  the  approval  of  any 
just  mind.  Such  is  not  the  effect  of  the  statute  in  question. 
Not  one  of  its  provisions  has  such  an  appearance.  It  is  clear, 
and  has  been  so  held,  that  its  operation  is  confined  to  the  prop- 
erty on  which  the  writ  of  attachment  is  actually  levied,  or 
which  is  seized  or  taken  by  the  auditors  under'the  special  pro- 
visions of  the  law.  The  case  referred  to  is  that  of  Tomlinson 
V.  Stiles,  4  Dutchei'  201,  in  which  it  was  decided  that  no  title 
passed  under  a  sale  by  the  auditors  of  property  which  had 
not  been  levied  on  by  the  writ.  This  doctrine  was  affirmed 
in  the  same  case  by  the  Court  of  Errors.  5  Butcher  426.  In 
his  opinion,  read  in  the  Supreme  Court,  Chief  Justice  Green 
remarks,  "  the  proceeding  is  in  rem,  and  operates  only  upon 
the  pi'operty  attached."  In  this  case  the  judgment  in  both 
courts  is  founded  on  the  idea  that  the  attachment  proceeding 
is  entirely  inoperative  beyond  the  bound  to  which  it  is  made 
a  lien  by  the  statute. 

But  if  there  was  any  doubt  on  this  subject  arising  from  the 
general  provisions  of  this  law,  such  doubt  would  be  entirely 
dispelled  by  the  contents  of  the  forty-seventh  section,*  requir- 

*Bev.,  p.  52,  ?  56. 


24  NEW  JERSEY  SUPREME  COURT. 

Hiitchiuson  ads.  Consumers  Coal  Co. 

ing  the  plaintiff  iu  attachment,  and  the  other  creditors,  to  exe- 
cute a  refunding  bond,  before  they  are  entitled  to  a  dividend. 
The  condition  of  such  bond  is,  that  the  obligor  "shall  appear 
to  any  suit  that  may  be  brought  against  him  by  the  said  de- 
fendant, within  one  year  next  after  the  date  of  the  said  bond, 
and  shall  pay  unto  such  defendant  any  sum  of  money  which, 
by  the  judgment  or  decree  of  the  court,  shall  appear  to  have 
been  received  by  him,  and  not  due  or  owing,  with  costs  of  suit." 
It  seems  to  me  that  nothing  can  be  clearer  than  the  intention 
here  manifested,  that  the  proceeding  is  in  no  sense  to  be  clothed 
with  the  qualities  of  a  judgment  at  common  law,  for  the  very 
money  paid  by  force  of  it  may  be  recovered  back,  if  it  can  be 
shown  that  the  claim  of  the  creditor  was  not  just.  If  the 
judgment  be  not  conclusive,  with  respect  to  the  money  actually 
realized  under  it,  it  does  not  appear  to  be  tenable  to  claim  that 
it  is  conclusive  as  to  the  moneys  embraced  in  it,  but  not  levied. 
In  my  estimation,  the  force  of  a  judgment  in  attachment  is 
spent  by  a  sale  of  the  property  attached,  and  consequently,  such 
judgment  cannot  form  the  basis  of  an  action  at  law.  This  re- 
sult makes  the  second  plea  a  good  bar  to  this  suit,  and  as  the 
demurrer  is  to  both  pleas,  the  defendant  is  entitled  to  judgment. 

Cited  in  Schenck  r.  Griffin,  9  Vr.  462. 


CHAELES  HUTCHINSON  ads.  THE  CONSUMERS  COAL  CO. 

1.  Affidavits  of  jurors  are  admissible  in  their  own  exculpation,  and  to 
sustain  the  verdict;  but  when  offered  for  the  purpose  of  contradicting 
or  destroying  the  verdict,  they  have  been  regarded  always  by  this 
court  as  against  the  policy  of  the  law,  and  on  that  ground  have  been 
invariably  rejected. 

2.  Applications  to  set  aside  verdicts  for  the  misbehavior  of  jurors  are 
addressed  to  the  sound  legal  discretion  of  the  court,  and  cannot  ordi- 
narily be  brought  to  the  test  of  any  fixed  and  definite  rule.  Each 
application  must  be  determined  mainly  upon  its  own  peculiar  facts 
and  circumstances,  and  should  be  granted  or  refused  with  a  view,  not 
so  much  to  the  attainment  of  exact  justice  in  the  particular  case,  as 
to  the  ultimate  effect  of  the  decision  upon  the  administration  of  justice 
in  general. 


NOVEMBER  TERM,  1872.  25 

Hutchinson  ads.  Consumers  Coal  Co. 

Where  both  parties  are  innocent,  a  tainted  verdict  will,  in  general,  be 
set  aside  without  hesitation,  on  the  application  of  either  party.  But 
this  will  not  be  done  on  the  application  of  one  who  has  attempted 
directly  or  indirectly,  to  influence  the  jury  by  improper  means,  or 
■who  has  encouraged,  of  prompted,  or  knowingly  permitted  such  an 
attempt,  or  who  rests  under  any  just  suspicion  of  having  done  so. 
The  lacts  in  this  case,  pointing  suspiciously  to  a  corrupt  arrangement 
between  a  friend  of  the  defendant  and  one  of  the  jurors,  but  nothing 
appearing  to  cast  suspicion  on  the  defendant — Held,  that  on  his  ap- 
plication, the  verdict  should  be  set  aside. 


On  rule  to  show  cause. 

Argued  at  June  Term,  1872,  before  Beaslet,  Chief  Jus- 
tice, and  Justices  Bedle,  Woodhull  and  Scudder. 

For  the  rule,  C.  8.  Titsworth  and  Mr.  Payne,  of  Pa. 

Contra,  C.  Parker  and  T.  Runyon. 

The  opinion  of  the  court  was  delivered  by. 

Woodhull,  J.  So  far  as  the  depositions  of  the  four 
jurors  relate  to  what  took  place  in  the  jury  room  after  the 
jury  had  retired  to  consider  of  their  verdict,  and  so  far  as 
they  are  intended  to  show  or  to  explain  the  reasons,  or  the 
motives  of  the  jurors,  or  any  of  them,  for  giving  or  consent- 
ing to  the  verdict,  they  cannot  be  received  as  evidence  to 
support  this  application.  It  has  been  held  by  this  court 
{Kennedy  v.  Kennedy,  3  Harr.  451,)  that  the  affidavits  of 
jurors  are  admissible  in  their  own  exculpation,  and  to  sustain 
the  verdict;  but  when  offered  for  the  purpose  of  contradicting 
or  destroying  the  verdict,  they  have  been  regarded  always  by 
this  court  as  against  the  policy  of  the  law,  and  on  that  ground 
have  been  invariably  rejected.  Brewster  v.  Thompson,  Coxe 
32;  Bandall  v.  Grover,  lb.  151;  Schench  v.  Stevenson,  1 
Penn.  387 ;  JDen  v.  McAllister,  2  Halst.  46  ;  ClarJc  v.  Read, 
2  South.  486 ;  Deacon  v.  Shreve,  2  Zab.  176. 

And  although  there  arft  many  cases  to  the  contrary,  tlie 
great  weight  of  authority  in  this  country  and  in  England,  ap- 
pears to  support  the  doctrine  that  the  testimony  of  jurors,  to 


26  NEW  JERSEY  SUPREME  COURT. 

Hutchinson  ads.  Consumers  Coal  Co. 

impeach  their  own  verdict,  should  be  excluded,  on  grounds  of 
public  policy;  because  it  tends  to  defeat  their  solemn  act, 
where  third  persons  are  interested ;  because  its  admission 
would  open  a  door  to  tamper  witii  jurymen,  after  they  had 
given  their  verdict ;  because  it  might  be  the  means  in  the 
hands  of  a  dissatisfied  juror  to  destroy  a  verdict  at  any  time 
after  he  had  assented  to  it ;  and  because  of  its  tendency  to 
unsettle  verdicts  in  general.  Willing  v.  Swasey,  1  Browne 
123;  Owen  v.  Warburton,  1  N.  B.  326;  Hilliard  on  New 
Trials,  ch.  10,  §  63;  1  Gr.  &  Wat.  on  N.  T.,  111-115, 
-and  cases  cited. 

Throwing  out  of  the  account  such  parts  of  the  depositions 
read  on  the  argument  as  fall  within  the  operation  of  the  rule 
just  stated,  we  have  remaining,  as  the  basis  of  the  present 
application,  the  single  ground  of  the  misbehavior  of  the 
juror  McLaughlin  during  the  progress  of  the  trial,  and  before 
the  jury  retired  to  consider  of  their  verdict. 

Applications  of  this  character  being  always  addressed  to 
tJie  sound  legal  discretion  of  the  court,  cannot  ordinarily  be 
brought  to  the  test  of  any  fixed  and  definite  rule.  Each  ap- 
plication must  be  determined  mainly  upon  its  own  peculiar 
facts  and  circumstances,  and  should  be  granted  or  refused 
with  a  view,  not  so  much  to  the  attainment  of  exact  justice 
in  the  particular  case,  as  to  the  ultimate  effect  of  the  decision 
upon  the  administration  of  justice  in  general. 

This  last  consideration  will  be  found  to  have  exerted,  very 
generally,  a  controlling  influsnce  in  determining  the  action  of 
courts  with  reference  to  tainted  verdicts. 

The  facts  in  regard  to  the  conduct  of  the  juror  McLaugh- 
lin, which  are  either  undisputed  or  clearly  established  by  the 
testimony,  appear  to  be  these :  one  day,  during  tiie  progress 
of  the  trial,  he  pointed  out  Robert  Love  to  the  foreman  of* the 
jury,  saying,  "I  believe  that  little  curly-headed  fellow  is 
worth  a  million  of  dollars."  On  the  Saturday  week  before 
the  verdict  was  rendered,  he  was  heard  by  the  foreman  to 
inquire  where  he  could  raise  ^500,  saying  that  he  must  get  it. 
The  same  Saturday  he  went  with  one  Kernan,  a  relative  of 


NOVEMBER  TERM,  1872.  27 

Hutchinson  ads.  Consumers  Coal  Co. 

McLaughlin's  wife,  and  a  stranger  to  both  of  the  parties  to 
this  suit,  to  the  lodging  place  of  Robert  Love,  to  whom  he 
was  there  introduced  by  Kernan,  and  with  whom  he  had 
shortly  afterwards  a  private  interview  of  some  twenty 
minutes,  during  which  this  case,  the  probable  result  of  the 
trial,  and  the  influences  by  which  that  result  might  be 
affected,  formed  the  chief  topic  of  conversation.  Before  sep- 
arating on  that  occasion,  McLaughlin  gave  Love  his  address, 
with  an  invitation  to  over  to  and  see  him  the  following 
Monday.  On  the  day  last  named,  they  met  again  in  the 
neighborhood  of  the  court-house,  and  the  Thursday  following 
they  were  observed  conversing  together  in  very  low  tones, 
both  of  them  appearing  to  be  much  confused  when  the  witness, 
an  acquaintance  of  McLaughlin's,  asked  him  in  a  jocular  way, 
the  ]}^^^^  of  coa?.  The  same  day  they  were  drinking  to- 
gether at  different  saloons,  treating  each  other,  and  having 
some  further  talk  about  the  case — this,  it  must  be  remem- 
bered, was  Thursday,  February  22d.  The  day  before  that, 
February  21st,  and  again  February  23d,  McLaughlin  in- 
formed the  court  that  he  had  been  corruptly  approached  by 
Love,  who  had  endeavored  to  persuade  him  to  use  his  influ- 
ence with  the  other  jurors  to  procure  a  light  verdict  against 
the  defendant.  The  same  information,  in  substance,  was 
communicated  to  a  fellow  juror  in  the  case,  either  on  the  21st 
or  tlie  23d  of  February,  McLaughlin  telling  him  that  he  was 
going  before  the  judge  to  make  an  affidavit.  The  greater 
part  of  these  facts  appear  substantially  in  the  statements  of 
both  McLaughlin  and  Love.  The  differences  between  them 
seem  to  result  mainly  from  an  attempt  on  the  i)art  of  each 
to  exculpate  himself,  and  throw  the  blame  over  on  the  other. 
Neither  is  willing  to  acknowledge  Kernan  as  his  agent,  nor 
will  either  admit  that  he  made  the  first  advance  to  the  other. 
It  can  hardly  be  regarded,  however,  as  of  much  importance 
for  the  purposes  of  this  application,  which  one  of  these  two 
men  has  incurred  the  greater  guilt,  which  of  them  was  the 
tempter,  and  which  the  tempted. 

Tlie  theory  of  the  defendant's  case,   as    presented  by  his 


28  NEW  JERSEY  SUPREME  COURT. 

Hutchinson  ads.  Consumers  Coal  Co. 

counsel,  and  sustained  by  the  testimony  of  Love,  is,  that  the 
corrupt  proposition  originated  with  the  juror,  and  was 
rejected  without  being  even  communicated  to  the  defendant; 
that  the  disappointed  juror,  baffled  in  his  fraudulent  attempt 
to  sell  himself  to  the  defendant,  forthwith  turned  accuser,, 
representing  to  his  fellow-jurors  tliat  ct)rrnpt  advances  had 
been  made  to  him,  and  money  actually  offered,  in  behalf  of 
the  defendant ;  and  that  so  gross  an  impeachment  of  the 
integrity  of  the  defendant,  could  not,  and  in  fact  did  not,  fail 
to  damage  his  case  in  the  estimation  of  the  jury,  the  result 
being  a  much  larger  verdict  against  him  than  would  other- 
wise have  been  rendered. 

McLaughlin,  on  the  other  hand,  wholly  repudiates  this 
version  of  the  transaction,  representing  that  on  Saturday, 
February  17th,  on  his  way  home  from  court,  he  was  over- 
hauled by  Keruan,  and  asked  to  go  to  New  York  on  some 
business,  Kernan  declining  to  tell  him  what  the  business  was ; 
that  he  accompanied  Kernan  accordingly  to  the  Merchants 
Hotel,  and  shortly  after  arriving  there,  was  by  him  introduced 
to  Mr.  Love,  who  invited  him  up  stairs  to  a  private  room, 
inquired  whether  he  was  a  juror  in  this  case,  what  the  pros- 
pect was,  what  influence  he  had  with  the  jury,  and  what 
could  be  done  to  procure  a  light  verdict  against  the  defendant. 

Without  undertaking  to  decide  upon  the  credibility  of 
these  witnesses,  or  to  determine  the  relative  truthfulness  of 
their  conflicting  statements,  we  do  not  hesitate  to  say,  that 
neither  McLaughlin  nor  Love  has  succeeded  in  giving  any 
satisfactory  explanation  of  his  conduct  in  connection  with 
this  case;  and  that  the  facts  admitted  or  proved,  point  most 
suspiciously  to  a  corrupt  projiosition  made  by  one  of  them — 
no  matter  which  one — and  entertained  or  encouraged  by  the 
other.  It  cannot  make  much  difference,  whether  the  juror 
was  offering  to  sell  himself,  or  was  only  willing  to  be  bought. 
In  either  case  he  was  not  fit  to  be  a  juror. 

It  is  not  possible  to  feel  any  degree  of  confidence  in  the 
fairness  of  a  verdict,  which  the  vote  and  influence  of  such  a 
juror  have  helped  to  make.     A  verdict,  so  tainted  with  sus- 


NOVEMBER  TERM,  1872.  29 

*        Jones  V.  Mechanics  Fire  Insurance  Co. 

picion,  is  seldom,  if  ever,  allowed  to  stand,  unless  the  party 
seeking  to  set  it  aside  is,  himself,  in  some  way  responsible  for 
the  taint  of  which  he  complains. 

Where  both  parties  are  innocent,  a  tainted  verdict  will,  in 
general,  be  set  aside  without  hesitation,  on  the  application  of 
either  party. 

But  the  same  principles  of  public  policy,  which  require  u» 
to  set  aside  the  verdict  in  such  a  case,  imperatively  forbid  our 
doing  it  on  the  application  of  one  who  has  attempted,  directly 
or  indirectly,  to  influence  the  jury  by  improper  means,  or  who* 
has  encouraged  or  prompted,  or  knowingly  permitted  such  an 
attempt,  or  even  rests  under  any  just  suspicion  of  having 
done  so. 

After  a  very  careful  examination  of  all  the  facts  which 
appear  in  this  case — an  examination  all  the  more  careful  on 
account  of  the  relations  existing  between  the  defendant  and 
Mr.  Love — we  find  no  just  ground  for  holding  the  defendant 
responsible  for  the  conduct  of  Mr.  Love  towards  the  juror, 
McLaughlin. 

Rule  to  show  cause  made  absolute. 


SAMUEL  JONES  v.  THE  MECHANICS  FIRE  INSURANCE 
COMPANY. 

..  To  comply  with  the  condition  of  a  fire  policy,  requiring  as  particular 
an  account  of  the  loss  and  damage  as  the  nature  of  the  case  will  admit,, 
where  all  the  books,  invoices  and  vouchers  are  preserved,  the  insured 
must  give,  in  his  preliminary  proofs,  full  and  exact  particulars  of  his- 
loss. 

i.  If  the  insurers  intend  to  insist  upon  defects  in  the  preliminary  proofs, 
they  should  notify  the  policy  holder,  that  he  may  amend  them  in  time, 
if  he  can.  If  they  are  silent,  or  object  on  other  grounds,  it  is  evidence 
of  waiver, 

L  If,  after  a  reasonable  time  to  examine  the  proofs  presented  and  re- 
ceived, the  insurers  do  not  object  to  them,  but  are  silent  until  their 
time  for  payment  has  expired,  or  is  about  to  expire,  such  delay  shall 
be  evidence  from  which  the  jury  may  infer  a  waiver  of  the  defects. 

Vol.  VII.  2 


30  NEW  JERSEY  SUPREME  COURT. 

Jones  V.  Mechanics  Fire  Insurance  Co. 

■4.  Fraud  and  false  swearing  will  avoid  the  policy ;  but  mere  mistakes 
in  stating  facts,  which  do  not,  in  themselves,  annul  its  conditions, 
and  do  not  appear  to  be  wilful  misrepresentations,  will  not  defeat  the 
action. 

•5.  The  ledger  and  cash  book  of  the  insured  may,  in  some  cases,  be  re- 
ceived in  evidence. 

€.  Questions  not  directly  relevant  to  the  issue,  on  cross-examination,  are 
within  the  discretion  of  the  judge,  to  prevent  an  undue  expansion  of 
the  case  by  collateral  facts. 

7.  A  witness,  in  the  same  business  in  anothei  piace,  and  where  the  con- 
ditions are  unlike,  cannot  be  asked  the  proportion  between  his  stock 
and  sales,  to  raise  a  presumption  of  fraudulent  statement  by  the  plain- 
tiff.    {Insurance  Co.  v.  Weide,  11  Wall.  438,  distinguished.) 


On  motion  for  new  trial. 

This  action  is  founded  on  two  certain  policies  of  insurance, 
and  the  several  renewals  thereof,  issued  by  the  defendants  to 
Tthe  plaintiff;  one  dated  April  16th,  1866,  for  $3000;  the 
other  dated  January  24tli,  1867,  for  $1500.  Both  are  on  the 
^plaintiff's  stock  of  merchandise,  consisting  of  groceries  and 
diquors  of  all  kinds,  and  all  such  articles  as  are  usually  kept 
an  a  wholesale  and  retail  grocery  and  liquor  store,  in  his  store 
.at  Morristown. 

The  policies  are  in  the  usual  form,  and,  in  the  body  of 
teach,  the  company  promise  and  agree  to  make  good  unto  the 
insured  all  such  loss  or  damage,  not  exceeding  in  amount  the 
«um  insured,  as  shall  happen  by  fire  to  the  property  within 
ithe  term  of  insurance;  the  said  loss  or  damage  to  be  esti- 
mated according  to  the  actual  cash  value  of  the  said  property 
at  the  time  the  same  shall  happen ;  and  to  be  j^aid  within  sixty 
days  after  due  notice  and  proof  thereof  made  by  the  insured, 
in  conformity  to  the  conditions  annexed  to  the  policy,  unless  the 
property  be  replaced,  or  the  company  have  given  notice  to 
lebuild  or  repair  the  damaged  premises,  &c. 

The  store,  with  nearly  all  the  goods  of  the  plaintiff  con- 
tained therein,  was  destroyed  by  fire  March  2d,  1871. 

The  policies  were  continued,  by  renewals,  beyond  the  time 
of  the  fire ;  a  notice  of  loss,  and  account  of  the  loss  and  damage, 


NOVEMBER  TERM,  1872.  31 

Jones  V.  Mechanics  Fire  Insurance  Co. 

accompanied  with  the  oath  of  the  plaintiflP,  were  served  on 
the  defendants. 

The  total  loss  claimed  by  this  statement,  was  $46,510.74. 
Total  insurance,  in  different  companies,  $28,000. 

Action  was  brought  by  the  plaintiff,  July  25th,  1871,  for  the 
amounts  of  tiie  two  above  named  policies  of  the  defendants, 
and  verdict  rendered  for  the  sums  therein  named,  with  interest. 

Upon  certain  rulings  of  the  justice  at  the  circuit,  and 
exceptions  to  this  charge,  and  because  the  verdict  is  alleged  to 
be  against  the  weight  of  evidence,  and  unjust,  a  motion  for  a 
new  trial  was  made. 

The  further  particulars  will  appear  in  the  opinion  of  the 
court. 

Argued  at  June  Term,  1872,  before  Beasley,  Chief  Jus- 
lice,  and  Justices  Bedle,  ^yooDHULL  and  Scudder. 

For  the  plaintiff,  /.  Vanatta. 

For  the  defendants,  C.  Parker  and  B.  Williamson. 

The  opinion  of  the  court  was  delivered  by 

Scudder,  J.  It  has  been  often  decided  that  such  policies 
of  insurance  are  contracts  of  indemnity,  in  case  of  loss  by 
fire,  upon  compliance  with  the  terms  and  conditions  therein 
contained.  They  are  therefore  to  be  construed  as  other  con- 
tracts between  competent  parties,  to  fulfill  their  intentions  as 
they  have  expressed  them  in  writing. 

In  this  case,  it  is  first  objected  that  the  court  erred  in 
refusing  to  nonsuit  the  plaintiff,  because  due  notice  and  proof 
of  the  loss,  in  conformity  to  the  conditions  annexed  to  the 
policies,  were  not  made  sixty  days  prior  to  bringing  the  action. 

Such  proof  and  notice  are,  by  the  terms  of  the  policies, 
conditions  precedent,  and  the  company  have  sixty  days  to 
pay  the  loss,  after  notice  and  proof  are  made. 

By  Article  9,  of  the  policies,  "  Persons  sustaining  loss  or 
damage  by  fire,  shall  forthwith  give  notice  thereof  in  writing 
to   the  company,"  &c.     Notice  was  given  to  the  defendants 


32  NEW  JERSEY  SUPREME  COURT. 

Jones  V.  Mechanics  Fire  Insnrance  Co. 

by  Edwin  Ross,  an  insurance  agent,  on  the  day  after  the  fire^ 
and  they  have  not  objected  to  the  form  or  the  time  of  this 
notice  at  the  trial  of  the  cause. 

In  tlie  same  article  it  is  stipulated  that,  "as  soon  as  possi- 
ble, they  shall  deliver  as  particular  an  account  of  the  loss 
and  damage  as  the  nature  of  the  case  will  admit,  signed  with 
their  own  hands ;  and  they  shall  accompany  the  same  with 
their  oath  or  affirmation,  declaring  the  said  account  to  be  just 
and  true." 

An  account  of  the  loss  and  damage,  verified  by  the  oath  of 
the  plaintiff,  was  received  by  the  defendants,  April  3d,  1871^ 
The  time  seems  longer  than  would  be  necessary,  but  mean- 
while, the  adjusting  agent  of  the  defendants  examined  the 
premises,  had  conversations  with  the  plaintiff,  and  saw  his 
books  May  16th,  in  the  office  of  plaintiff's  attorney.  These 
books  appear  to  have  been  the  day-book,  ledger  and  cash- 
book.  From  these,  an  account  of  cash  sales  and  credits  was 
taken  off.  The  blotter  was  not  shown.  The  inventory  made 
by  the  plaintiff  in  April,  1870,  which  is  copied  in  his  proof 
of  loss  served  on  the  defendants  April  3d,  1871,  was  shown 
to  Colwel!,  who  represented  one  of  the  other  companies, 
March  6th,  1871,  but  does  not  appear  to  have  been  seen  by 
Winterton,  the  agent  of  defendants.  These  agents  were,, 
however,  examining  the  facts  together.  After  the  examina- 
tion of  the  books,  May  24th,  1871,  A.  J.  Winterton,  special 
agent  to  adjust  for  the  several  insurance  companies  having 
policies  on  plaintiff's  goods,  addressed  a  letter  to  him,  by 
which  he  was  notified  that  papers  purporting  to  be  proofs  of 
loss,  and  served  on  said  companies,  having  reference  to  the 
fire  which  occurred  March  2d,  1871,  which  were  served  in 
the  month  of  April  next  succeeding,  were,  upon  careful  exam- 
ination, found  to  be  insufficient  and  unsatisfactory,  in  that — 

1st.  The  account  of  his  purchases  was  without  dates,  and 
was  not  in  detail,  and  did  not  furnish,  as  required,  "  a  par- 
ticular account "  of  the  loss. 

2d.  The  account  of  goods  sold  for  cash  and  credit,  was 
largely  below  the  real  amount  shown  by  his  books  of  account. 


< 


NOVEMBER  TERM,  1872.  33 

Jones  V.  Mechanics  Fire  Insurance  Co. 

It  was  further  stated,  "  that  by  the  above,  the  insurance  com- 
panies waive  no  rights  under  their  several  policies  of  insur- 
ance, and  modify  no  objections  to  your  claim  for  loss  that 
might  arise  from  other  matters,  but  first  wish  your  proof 
amended  and  completed,  as  required." 

This  letter  is  a  distinct  objection  to  the  preliminary  proof 
of  loss,  because  it  does  not  give  a  particular  account,  and  the 
purchases  given  are  without  date,  and  not  in  detail.  It  does 
not  allege  that  the  proofs  were  not  made  in  time,  nor  has  this 
been  insisted  upon  at  the  trial.  Upon  looking  at  the  prelim- 
inary proofs  delivered  to  the  defendants,  April  3d,  1871,  we 
find  them  to  consist,  first,  of  the  certificate  of  the  nearest 
notary,  pursuant  to  the  condition  of  the  policies;  second, 
•Schedule  A,  an  inventory  of  goods,  April,  1870,  belonging  to 
Samuel  Jones,  Morristown,  N.  J.  This  is  itemized  into 
named  articles,  quantities,  and  prices  carried  out,  and  amount- 
ing in  all  to  $43,241.00;  third.  Schedule  B,  goods  bought  by 
Samuel  Jones  from  April  1st,  1870,  to  March,  1871.  In 
this,  the  names  of  the  parties  from  whom  the  purchases  were 
made,  and  the  amounts  purchased  of  each,  are  given ;  but 
there  are  no  dates,  and  the  articles  purchased  are  not  named. 
Thus:  "Geo.  W.  Elder  &  Co.,  $1386.96,"  and  others  follow- 
ing in  like  form.  In  several,  the  articles  are  given,  with 
amounts,  but  no  names;  in  others,  the  places  where  purchased. 
The  amount  foots  up  $21,961.39.  Schedule  C  contains  the 
goods  saved  from  the  fire,  amounting  to  $465.75  ;  Schedule  D, 
amount  of  inventory  taken  April,  1870,  $43,241.00;  goods 
bought  since  April  1st,  1870,  to  March,  1871,  $21,961.39— 
total,  $65,202.39.  Deducting  goods  sold  from  April,  1870, 
to  March,  1871,  $22,782.37;  less  twenty  per  cent,  profits, 
$4556.47— $18,225.90;  balance,  $46,976.47;  goods  saved 
from  fire,  $465.75  —  leaving  a  total  loss  of  $46,510.74. 
Schedule  E  shows  the  policies  of  insurance  on  the  goods  of 
plaintiff. 

The  objections  in  the  letter  of  May  24th  are  to  Schedule  B 
and  the  amount  of  sales  given  in  Schedule  D.  The  first  is 
•alleged  to  be  incomplete ;  and  the  second,  false. 


34  NEW  JERSEY  SUPREME  COURT. 


Jones  V.  Mechanics  Fire  Insurance  Co. 


The  plaintiff  returned  answer  to  this  letter,  served  June 
6th,  1871,  that  without  admitting  there  was  any  insufficiency 
in  the  proofs  of  loss,  but  to  give  all  information  in  his  power,. 
he  furnished  tlie  particulars,  so  far  as  he  was  able,  of  the  bills 
of  purchases  mentioned  in  Schedule  B,  and  also  admitted  that 
the  balance  of  sales  on  Schedule  D  should  be  $21,025.46,, 
instead  of  $18,225.90. 

The  other  particulars  are  copies  of  invoices,  stating  also 
additional  purchases,  which  were  omitted  in  the  original 
proof. 

July  20th,  1871,  A.  J.  Winterton,  special  agent  for  the 
several  insurance  companies,  by  letter  to  the  plaintiff,  made 
a  formal  demand  upon  him  for  a  written  elimination  of  the 
inventory  of  April,  1870,  as  furnished  in  his  several  proofs 
of  loss,  showing  what  property  therein  enumerated  he  claimed 
was  inventoried  by  the  U.  S.  Government,  and  what  property 
therein  enumerated  he  claimed  was  not  inventoried  by  the 
U.  S.  Government,  at  the  time  of  the  seizure  made;  also,  a 
demand  on  him  for  a  written  statement,  giving  the  location 
and  quantities  and  quality  of  stock  on  the  premises  at  the- 
time  of  the  fire. 

To  this  formal  demand,  the  plaintiff,  by  his  counsel,  on 
July  21st,  1871,  answered,  refusing  to  comply. 

July  25th,  1871,  this  action  was  brought  to  recover  the 
amounts  insured  by  the  defendants.  The  seizure  referred  to- 
in  the  last  communication  was  made  by  the  U.  S.  Internal 
Revenue  officers,  in  November,  1869,  for  alleged  violation  of 
the  revenue  laws,  and  was  continued  until  March,  1870.  The 
inventory  named  was  that  made  by  these  officers  at  the  time 
of  seizure. 

These  facts  must  be  stated  and  considered  in  their  order,  to 
determine  whether  the  action  was  prematurely  brought. 

The  defendants  insist  that  the  action  could  not  be  brought 
until  sixty  days  had  elapsed  after  June  6th,  when  the  addi- 
tional particulars  were  given. 

This  depends,  in  the  first  place,  upon  the  sufficiency  of  the 
proof  of  loss  served  April  3d,  1871.     It  must  appear  to  be. 


NOVEMBER  PERM,  1872.  35 

Jones  V.  Mechanics  Fire  Insurance  Co. 

as  particular  an  account  of  the  loss  and  damage  as  the  nature- 
of  the  case  will  admit. 

This  has  often  been  characterized  as  a  harsh  rule,  but  with 
the  modification  that  the  account  shall  only  be  as  particular 
as  the  nature  of  the  case  will  admit;  this  is  hardly  just.  It 
is,  however,  the  contract  between  the  parties,  and  in  the 
many  cases  to  be  found  in  the  books,  the  courts  have  stead- 
fastly held  the  insured  to  a  compliance  with  it. 

In  cases  where  the  fire  has  not  only  consumed  the  goods 
insured,  but  all  books  and  vouchers  from  which  an  account 
could  be  made,  the  insured  has  not  been  held  to  do  what  was 
vain  and  impossible,  but  only  to  such  performance  as  the 
nature  of  the  case  would  admit.  Norton  v.  M.  &  8.  Ins.  Co.^ 
7  Cow.  645;  Mason  v.  Harvey,  8  Ex.  819;  Roper  v.  Len~ 
don,  1  E.  &  E.  825;  (102  E.  C.  L.) 

In  the  present  case,  the  plaintiff's  books  were  saved ;  he 
had  many  of  the  invoices  and  vouchers  for  his  purchases  be- 
t<veen  April  1st,  1870,  and  March,  1871 ;  and  others  could  be 
easily  procured.  I  think  therefore  the  nature  of  his  case 
admitted  of  full  and  exact  particulars.  These  he  did  not  give 
in  Schedule  B.  He  made  no  statement  of  the  articles  pur- 
chased, or  the  times  when  they  were  bought.  The  names  of 
the  persons  from  whom  goods  were  alleged  to  have  been 
bought,  and  the  gross  amounts,  would  not  enable  the  insurers 
to  test  the  accuracy  of  the  account  delivered  to  them.  It 
would  have  imposed  no  great  additional  burden  upon  him  to> 
state  in  his  first  proofs  the  items  of  his  several  purchases,  so 
far  as  he  had  or  could  obtain  vouchers  for  the  same,  as  was 
done  in  the  subsequent  proofs.  The  sales  being  entered  each 
day  as  cash,  I  think  are  sufficiently  specified  in  the  gross 
amounts,  as  there  could  be  no  object  in  giving  the  amount  of 
each  day's  sales,  if  it  were  possible  so  to  do. 

In  Lycoming  County  Ijs.  Co.  v.  Updegraff,  40  Penna.  311,. 
the  gross  amount  of  the  inventory  at  the  close  of  the  year,, 
and  of  purchases  up  to  the  date  of  loss,  were  taken  from  the 
books,  and  stated  together  as  a  total  sum.  This  was  held  to 
be  insufficient.     This  case  is  different,  in  containing  a  par- 


36  NEW  JERSEY  SUPREME  COURT. 

Jones  V.  Mechanics  Fire  Insurance  Co. 

ticular  account  of  the  inventory,  and  partial  statement  of  the 
purchases  carried  out  in  separate  sum,s,  but  still  the  full  par- 
ticulars, which  were  important  for  the  defendants  to  know,  and 
which  the  plaintiff  had  it  in  his  power  to  give,  were  not  ren- 
dered. 

A  detailed  list  of  the  articles  lost,  where  this  is  practicable, 
is  the  intent  of  the  parties,  and  courts  should  only  relax  the 
requirement  where  the  nature  of  the  case  does  not  admit  of 
guch  particularity.  Catlin  v.  Springfield  Fire  Ins.  Co.,  1 
Sumner  C.  C.  434.  The  plaintiff  however  claims  that  if  this 
be  so,  the  defendants  by  their  acts  have  waived  a  strict  com- 
pliance with  this  condition.  In  many  cases  this  subject  of 
waiver  is  considered,  and  different  conclusions  have  been 
reached  by  the  courts. 

In  Roumage  v.  Mech.  Ins.  Co.,  1  Gh-een  110,  the  court  held 
where  the  certificate  of  the  nearest  clergyman  was  defective 
in  not  setting  out  the  amount  of  the  loss,  and  the!  company 
resolved  that  they  would  not  pay  the  claim  made  by  the 
insured,  or  any  part  thereof,  believing  that  it  was  founded  in 
an  attempt  to  defraud  the  company;  that  this  resolution,  and 
the  silence  of  the  company  in  regard  to  the  defect  in  the  cer- 
tificate, was  not  a  waiver  of  such  defect. 

Other  cases  have  held  that  the  company  will  be  considered 
as  waiving  the  informality  in  the  notice,  if,  when  the  notice  is 
given,  they  do  not  object  to  the  form  of  it,  but  refuse  to  pay 
on  other  distmct  grounds.  Schenck  v.  Mercer  Jns.  Co.,  4l 
Zah.  447  ;  Francis  v.  Somerville  Ins.  Co.,  1  Dutcher  78.  But 
tjpoii  the  point  that  the  defect  is  not  waived  by  receiving  it 
without  objection,  there  has  been  no  other  decision  in  this 
court  until  recently. 

Upon  reading  the  opinions  in  that  case,  it  will  appear  that 
the  court  differed,  and  reluctantly  yielded  to  the  great 
authority  of  Ciiief  Justice  Marshall,  in  Columbian  Ins.  Co. 
V.  Lawrence,  2  Peters  25.  But  this  case,  upon  rehearing, 
(10  Pet.  507,)  was  virtually  overruled,  and  again  in  Tayloe 
V.  Merchants  Ins.  Co.,  9  How.  404,  most  decidedly  disap- 
proved. 


NOVEMBER  TERM,  1872.  37 

Jones  V.  Mechanics  Fire  Insurance  Co. 

The  first  two  cases  are  commented  upon  by  Chancellor 
Walworth,  in  ^tna  Fire  Ins.  Co.  v.  Tyler,  16  Wend.  401, 
and  the  good  sense  of  the  rule,  as  held  in  the  New  York 
courts,  was  vindicated.  This  is  stated  in  his  language  as 
follows:  "Good  faith  on  the  part  of  the  underwriters,  in 
such  a  case,  requires  that  if  they  mean  to  insist  upon  a  mere 
formal  defect  of  this  kind  in  the  preliminary  proofs,  they 
should  apprise  the  assured  that  they  consider  the  same  defect- 
ive in  that  particular,  or  to  put  their  refusal  to  pay  upon  that 
ground  as  well  as  others,  so  as  to  give  him  an  opportunity  to 
supply  the  defect  before  it  should  be  too  late ;  or  if  he  neg- 
lects so  to  do,  then  silence  should  be  held  a  waiver  of  such 
defect  in  the  preliminary  proofs,  so  that  the  same  shall  be 
considered  as  having  been  duly  made  according  to  the  con- 
ditions of  the  policy." 

These  cases,  as  in  Roumage  v.  Mechanics  Ins.  Co.,  relate 
to  the  fact  of  the  preliminary  proofs  requiring  the  certificate 
of  loss  from  the  nearest  magistrate;  but  other  cases  have 
extended  the  doctrine  to  the  clause  requiring  the  insured 
to  give  notice  of  the  loss  forthwith,  and  to  render  a  partic- 
ular account  within  a  limited  time,  and  other  preliminary 
proofs.  McLaughlin  v.  Mut.  Iiis.  Co.,  23  Wmd.  525 ;  Gil- 
bert  V.  N.  A.  Ins.  Co.,  23  Wend.  43 ;  Norton  v.  R.  &  S.  Ins. 
Co.,  7  Cow.  645  ;  Francis  v.  Ocean  Ins.  Co.,  6  Coio.  404 ; 
Cornell  v.  Le  Hoy,  9  Wend.  163;  Bodle  v.  Chenango  Ins, 
€o.,  2  Corns.  53;  O'Neil  v.  Buffalo  Bis.  Co.,  3  Corns.  122; 
Burnstead  v.  Dividend  Ins.  Co.,  2  Kern.  81  ;  Kimball  v.  Ham- 
ilton Ins.  Co.,  8  Bosw.  495 ;  Underhill  v.  Agawam  Ins.  Co., 
6  Cush.  440 ;  Brewer  v.  Chelsea  Ins.  Co.,  14  Gray  203 ; 
AngeWs  L.  &  F.  Ins.  244,  &c. 

In  Priest  v.  Citizens  Ins.  Co.,  3  Alleji  604,  the  court  in 
stating  the  distinction  between  waivers  of  matter  of  form  and 
substance,  say  approvingly  :  "  It  is  said  that  stipulations  as  to 
the  preliminary  proofs  do  not  touch  the  substance  or  essence  of 
the  contract ;  but  relate  only  to  the  form  or  mode  in  which 
the  liability  of  the  company  shall  be  ascertained  and  proved. 
Besides,  such  preliminary  proofs  must  necessarily  be  submit- 


38  NEW  JERSEY  SUPREME  COURT. 


Jones  V.  Mechanics  Fire  Insurance  Co. 


ted  to  tlie  officers  of  the  corporation,  wlio  must  pass  on  its 
sufficiency,  and  it  therefore  comes  within  the  scope  of  their 
authority  to  say  whetlier  proof  of  the  losses  is  sufficient.  It 
may  be  added  that  in  ascertaining  and  settling  losses,  they 
frequently  act  upon  personal  investigations  by  themselves  or 
their  agentv=,  and  thus  obtain  knowledge  that  renders  the 
preliminary  proofs  wholly  immaterial."  It  was  held  there 
that  there  was  evidence  to  go  to  the  jury,  showing  not  only 
an  implied  but  an  express  waiver. 

The  case  of  Shawmut  Co.  v.  Peoples  Ins.  Co.,  12  Gray  535, 
denies  the  authority  of  a  special  agent  to  waive  these  proofs, 
but  admits  that  the  president  of  the  company  may.  But  as 
the  ruling  of  the  court  in  that  case  may  be  thought  to  be 
against  the  principle  above  stated,  it  is  worthy  of  notice  that 
it  cites  2  Pet.  53,  as  an  authority  upon  which  it  is  based. 
So  it  will  be  found  that  courts  of  other  states  that  have  held 
differently  have  followed  this  case.  See  Beatty  v.  Lycoming 
Ins.  Co.,  66  Penn.  9 ;  Keenan  v.  Missouri  Ins.  Co.,  12  Iowa 
126. 

The  conditions  of  insurance  policies  are  numerous,  varied 
and  minute  in  details.  These  are  doubtless  essential  for  their 
protection  against  fraud,  and  for  their  complete  security  ;  but 
they  are  perplexing  to  persons  not  familiar  with  their 
requirements  and  construction.  To  prevent  sharp  practice 
and  unfair  advantage  from  a  superior  knowledge,  it  seems 
most  just,  and  without  imposing  an  undue  burden  on  the 
insurance  companies,  to  hold  that  when  the  preliminary 
proofs  are  received,  if  there  are  defects,  they  shall  so  state  to 
the  insured,  that  he  may  amend  them  in  time,  if  they  can 
be  amended.  If  they  intend  to  deal  fairly  with  an  honest 
loss,  why  should  they  not  so  state?  If  they  believe  the  claim 
of  loss  is  a  fraud,  let  them  so  state,  and  contest  it  on  that 
ground.  The  interests  involved  are  so  great,  so  many  per- 
sons hold  all  they  possess  dependent  on  these  securities,  that 
both  insurers  and  insured  should  be  held  to  the  utmost  good 
faith  ;  and  such  has  been  the  manifest  purpose  of  the  courts. 

A  recent  case  in  our  court,  Basch  v.  Humboldt  Ins.  Co.y 


NOVEMBER  TERM,  1872.  39- 

Jones  V.  Mechanics  Fire  Insurance  Co. 

6   Vroom  429,  has  settled    this    construction,  so   far   as  the- 
question  was  involved,  in  the  determination  of  that  case. 

In  the  present  case  there  was  silence  on  the  part  of  the- 
iusurers  up  to  a  certain  time,  and  then  they  objected  to  the 
particulars  given  in  one  of  the  schedules,  which  were 
imperfect.  This  raises  a  further  question,  whether  the 
insurer  may  wait  until  his  sixty  days  credit  for  payment  is 
about  to  expire,  and  then  object,  and  upon  new  particulars 
being  given,  claim  an  extension  of  sixty  days  longer,  and  so 
continue  to  prolong  the  payment,  from  time  to  time,  as  new 
defects  may  be  discovered.  If  he  may  do  it  once,  he  may  do 
it  again  and  often.  To  prevent  such  abuse  of  this  right  to 
object,  which  the  insurer  undoubtedly  has,  it  must  be  held 
that  if,  after  a  reasonable  time  to  examine  the  preliminary 
proofs  presented  and  received,  the  insurer  does  not  object,, 
but  is  silent  until  his  time  for  payment  has  expired,  or  is 
about  to  expire,  such  delay  shall  be  construed  as  evidence 
from  which  the  jury  may  infer  a  waiver  of  the  defects. 
The  objection  comes  too  late,  because  the  insurer  obtains 
thereby  an  unfair  advantage,  which  would  be  obviated  by 
prompt  action  on  his  part.  If  he  must  object,  as  we  have 
already  held,  he  should  do  it  promptly,  otherwise  he  would 
have  the  advantage  of  his  own  wrong  in  the  delay  of 
pa)'ment. 

This  element  of  delay  does  not  appear  in  other  cases  which 
seem  to  maintain  a  contrary  doctrine.  Thus  in  Shawmut  Co. 
v.  Peoples  Ins.  Co.,  12  Gray  539,  it  is  said  "the  defendant's 
president,  far  from  assuming  to  waive  any  of  the  conditions 
of  the  policy,  or  to  accept  defective  proofs  of  loss  as  sufficient, 
took  extraordinary  pains  to  give  the  plaintiffs  notice  of  the 
defects,  and  ample  opportunity  to  cure  them.  Immediately 
he  gave  the  notice  when  the  first  statement  was  received. 
Upon  receiving  additional  papers,  he  informed  him  they  were 
not  full  enough,  and  a  few  days  later  delivered  the  papers  for 
correction,  calling  his  attention  especially  to  the  want  of  any 
statement   of  the   plaintiff''s   interest.     These  were  peculiar 


40  NEW  JERSEY  SUPREME  COURT. 

Jones  V.  Mechanics  Fire  Insurance  Co. 

grounds  for  requiring  information  on  this  point."     And  so 
he  promptly  objected.     This  differs  from  the  present  case. 

In  Kimball  v.  Hamilton  Ins.  Co.,  8  Bostv,  495,  the  prelim- 
inary proofs  were  handed  in,  the  president  of  the  company 
looked  over  the  papers,  and  told  the  insured,  "  these  are  not 
proofs,  and  referred  him  to  his  policy  for  information."  The 
insured  was  promptly  warned  of  the  defects. 

In  Peacock  v.  New  York  Ins.  Co.,  1  Bosw.  338,  the  court 
«ays :  "  The  defendants  are  allowed  sixty  days  after  the  pre- 
liminary proofs  are  furnished,  before  they  can  be  required  to 
,pay.  When  therefore,  what  are  in  good  faith  presented  to 
them  as  preliminary  proofs,  are  in  any  respect  defective,  com- 
mon fairness  requires  that  such  defects  be  suggested,  and  that 
it  be  not  held  in  reserve,  to  be  used  afterwards  to  obtain 
further  delay  of  payment,  or  to  defeat  a  suit  brought  for  the 
payment." 

That,  or  something  like  it,  appears  in  this  case.  The  first 
proofs  were  served  April  3d,  1871 ;  objections  were  made  and 
further  particulars  required.  May  24th,  1871.  Fifty-one 
days  had  elapsed.  Additional  proofs  were  served,  June  6th, 
1871.  July  20th,  1871,  further  particulars  were  required. 
Forty-four  days  had  elapsed.  All  the  books  and  proofs  in 
the  plaintiff's  possession  had  been  submitted  to  the  inspection 
of  the  company's  adjusting  agent  before  the  suit  was  brought. 

The  court  rightly  refused  to  non-suit  the  plaintiff,  and  per- 
mitted these  facts  to  go  to  the  jury  as  evidence  of  a  waiver  of 
complete  preliminary  proofs  on  the  part  of  the  plaintiff,  at 
the  first  service. 

It  was  next  urged  that  there  was  fraud,  or  attempt  at  fraud, 
by  false  swearing,  or  otherwise,  which,  by  the  condition  of  the 
policies,  caused  a  forfeiture  of  all  claim  on  the  defendants. 

The  facts  relied  on  to  sustain  these  reasons  are — 

1st.  The  great  discrepancy  between  the  inventory  made  by 
the  government  officers,  when  they  seized  the  plaintiff's  store 
in  November,  1869,  and  that  made  by  him  in  April,  1870, 
■when  he  regained  possession. 

2d.  The  alleged  statements  made  by  the  plaintiff  to  Win- 


NOVEMBER  TERM,  1872.  41 

Jones  V.  Mechanics  Fine  Insurance  Co. 

terton  and  Colwell,  soon  after  the  fire,  that  his  stock  burned,. 
or  his  loss  amounted  to  about  $27,000  or  $28,000,  whereas 
his  claim  shows  $46,510.74. 

3d.  The  affidavit  made  by  the  plaintiff.  May  23d,  1871,. 
which  contained  the  statement  that  his  inventory,  dated  April, 
1870,  as  incUided  in  his  proof  of  loss,  was  taken  by  him 
without  assistance  ;  whereas  it  appeared  in  the  evidence  that 
his  clerk,  Duffor'd,  helped  count  and  gauge,  while  he  made  all 
the  entries  and  estimates,  and  that  it  was  entered  in  a  book  ; 
whereas,  it  appeared  that  it  was  first  made  on  slips  of  paper» 

4th.  Further,  that  there  was  an  error  in  the  account  given 
in  the  proofs  of  the  amount  of  sales.  This  was  taken  from 
the  books  by  Edward  Piersou,  for  the  plaintiff,  and  appears 
to  have  been  his  mistake. 

5th.  Also,  that  it  was  not  shown  that  all  the  goods  pur- 
chased after  March,  1870,  went  to  the  store  at  Morristown, 
but  some  to  other  places,  though  the  entries  were  on  the 
books. 

6th.  And  in  stating  that  the  schedules  and  account  were 
full,  accurate,  just  and  true.  All  of  which,  it  was  alleged, 
were  untrue,  and  showed  fraud  and  false  swearing  within 
the  condition  of  the  policy,  and  avoided  it. 

All  the  facts  and  evidence  upon  which  the  charges  of 
fraud  and  false  swearing  were  based,  the  impeachment  of 
the  witnesses  by  contradiction  and  untrue  statements,  and 
especially  of  the  plaintiff's  testimony,  were  fairly  and  fully 
submitted  by  the  judge  in  his  charge  to  the  jury,  and  I  find 
no  misdirection  in  the  charge. 

The  corrections  in  the  account  were  made  before  the  suit 
was  brought,  and  it  was  competent  for  the  plaintiff  to  show 
that  they  were  made  by  mistake,  and  restate  them.  As  to 
the  alleged  false  swearing  in  the  affidavits  and  untrue  state- 
ments of  the  value  of  the  property  destroyed,  it  is  not  suffi- 
cient to  show  that  there  were  errors  in  the  fullness  and  accu- 
racy of  the  sworn  statement  of  loss,  and  in  the  affidavit  of  a 
collateral  fact,  as  to  who  helped  in  making  an  appraisements 
These  may  be  explained  and  corrected,  if  done  in  good  faith.. 


42  KE\y  JERSEY  SUPREME   COURT. 

Jones  V.  Mechanics  Fire  Insurance  Co. 

Fraud  aed  false  swearing  will  avoid  the  policy,  but  mere 
mistakes  in  staling  facts,  which  do  not  in  themselves  annul 
its  conditions,  and  do  not  appear  to  be  wilful  misrepresen- 
tations, will  not  defeat  the  action.  Campbell  v.  Charter  Oak 
Ins.  Co.,  10  Allen  213 ;  Levy  v.  Baillie,  7  Bing.  349  ;  Brit- 
ton  V.  R.  Insurance  Co.,  4  Fost.  &  Fin.  905. 

The  jury  have  passed  upon  all  the  several  matters  which 
were  submitted  to  them  by  the  court,  and  although  there  is 
conflict  in  the  testimony  and  doubts  suggested,  yet  tiiere  is 
not  tiiat  clear  preponderance  of  proof  against  the  verdict 
which  would  justify  the  court  in  disturbing  it. 

The  several  exceptions  to  the  ruling  of  the  judge,  by 
which  it  is  said  that  illegal  evidence  was  admitted  and  legal 
evidence  ruled  out,  to  the  prejudice  of  the  defendants,  I  will 
consider  briefly. 

It  was  objected  that  the  plaintiff's  ledger  and  cash  book 
were  admitted  in  evidence.  These  were  the  original  and  only 
entries  of  the  sales  made  by  the  plaintiff  from  April,  1870, 
to  March,  1871,  which  were  made  in  the  course  of  his  busi- 
ness, and  were  the  originals  from  which  the  sales  account  was 
taken,  which  was  stated  and  delivered  as  part  of  the  proof  of 
loss,  as  the  correctness  of  that  sales  account  was  in  issue,  and 
these  books  had  been  called  for  and  examined  by  the  defend- 
ant's agents,  as  part  of  the  plaintiff's  preliminary  proofs  and 
were  verified  by  the  plaintiff's  oath,  they  were  admissible 
upon  that  issue.  If  they  were  shut  out  they  would  exclude 
all  possible  testimony  of  such  sales. 

The  question  put  to  the  plaintiff  on  his  cross-examination 
by  the  defendant's  counsel,  as  to  what  debts  he  owed,  and  how 
much  he  was  worth,  were  not  directly  relevant  to  the  issue, 
and  were  within  the  discretion  of  the  judge  to  prevent  an 
undue  expansion  of  the  case  by  collateral  facts  and  issues. 
Their  exclusion  is  not  good  cause  for  setting  aside  the  verdict. 

The  further  ques.tion  was  asked  of  AVilliam  H.  Camp,  a 
witness  for  the  defendants,  who  resided  in  Newark,  whether 
the  amount  of  stock  carried  by  his  firm  ($50,000)  for  their 


NOVEMBER  TERM,  1872.  43 

Jones  V.  Mechanics  Fire  Insurance  Co. 

average  year's  sales,  ($500,000)  was  or  was  not  the  prudent 
proportion  of  stock  to  sales  in  that  business. 

This  question  was  overruled,  and  exception  taken.  The 
testimony  was  offered  to  raise  a  presumption  that  the  plain- 
tiff's stock,  as  he  claimed,  was  not  in  the  usual  proportion  to 
sales  in  that  business,  but  much  greater,  and  therefore  fraudu- 
ient.  This  question  was  pressed  on  the  authority  of  Insur- 
ance Co.  V.  Weide,  11  Wallace  438,  where  it  was  held  that 
such  question,  of  a  merchant  in  St.  Paul,  was  competent  in  a 
suit  by  another  in  the  same  business,  in  the  same  city. 

Admitting*  this  to  be  so,  the  conditions  were  alike  upon 
which  the  presumption  was  to  be  based.  It  was  the  same 
kind  of  business  in  the  same  city;  but  here  a  merchant  in 
Newark,  a  large  city,  Avas  asked  the  proportions  of  his  stock 
and  business ;  and  others  were  to  be  called  for  the  same  pur- 
pose, in  order  to  determine  the  reasonable  and  probable  pro- 
portion between  the  stock  and  sales  of  the  plaintiff  trading 
in  a  small  place  like  Morristown.  There  was  no  proper  or 
proximate  relation  between  the  two,  and  the  evidence  was 
calculated  to  mislead  the  jury.  A  stock  in  a  large  city  is 
turned  more  rapidly  than  in  a  small  place,  and  it  is  more 
likely  to  accumulate  in  the  latter,  where  the  sales  are  slower, 
and  the  business  continued  for  several  years.  Other  differ- 
ences will  suggest  themselves,  growing  out  of  the  peculiarities 
of  men  and  places.  Such  testimony  does  not  afford  any 
reasonable  inference  as  to  the  principal  matter  in  dispute. 
Nor  does  it,  in  the  language  used  in  the  case  above  cited, 
"conduce  in  any  reasonable  degree  to  establish  the  probability 
or  improbability  of  the  fact  in  controversy."  See,  also,  1 
Qreenl.  Ev.,  §  52, 448 ;  Eosooe's  N.  P.  Ev.  38,  88. 

I  have  thus  examined  all  the  material  points  raised  in  this 
case,  as  the  importance  of  the  issue  demands,  and  find  no 
reason  to  set  aside  the  verdict  of  the  jury. 

The  motion  for  a  new  trial  is  refused. 

Cited  in  State  Ins.  Co.  v.  3faackens,  9  Vr.  564 ;  NortJiampton,  &c..  Ins,  Co, 
V.  Stewart,  10  Vr.  486 ;  Carsoii  v.  Jersey  City  Ins.  Co.,  14  Vr.  300. 


44  XEW  JERSEY  SUPREME  COURT. 


Shreve  v.  Joyce. 


BENJAMIN  SHREVE  v.  JAPHET  B.  JOYCE  AND  JOHN  B. 
JOYCE,  SURVIVING  EXECUTORS  OF  JOSEPH  S.  JOYCE, 
DECEASED. 

1.  A  sole  executor  (and  of  course  if  one,  all,)  has  the  power,  by  a  new 
promise,  to  remove  the  bar  of  the  statute  of  limitations. 

2.  One  of  two  or  more  executors  can  bind  an  estate  by  the  new  promise, 
and  it  does  not  thereby  make  the  representatives  personally  liable. 

3.  A  co-executor  can  no  more  be  made  personally  liable  by  the  new 
promise  of  another  executor,  than  in  any  other  matter  where  the 
validity  of  the  act  of  the  individual  executor  in  binding  the  estate 
may  be  unquestioned.  The  judgment  in  either  case  Is  de  bonis  testa- 
toris,  and  there  can  be  no  personal  liability,  except  where  the  executor 
has  made  himself  chargeable  with  a  devastavit. 

4.  A  promise  to  remove  the  bar  of  the  statute  may  be  proved  against 
executors  in  the  same  way  as  in  other  cases,  being  always  suflSciently 
careful  to  see  that  the  deduction  is  properly  drawn  from  the  facta. 


On  case  certified  from  Burlington  Circuit  Court. 

Argued  at  June  Term,  1872,  before  Beasley,  Ciiief  Jus- 
tice, and  Justices  Bedle,  Woodhull  and  Scudder. 

For  the  plaintiff,  F.  Voorhees. 

For  the  defendants,  E.  Merritt. 

The  opinion  of  the  court  was  delivered  by 

Bedle,  J.  The  chief  question  for  our  solution  is,  whether 
a  promise  by  one  of  two  or  more  executors  is  sufficient  to  take 
a  debt  of  the  testator  out  of  the  statute  of  limitations. 

Very  little  can  be  gathered  from  the  English  books  on  this 
subject,  as  the  whole  matter  is  controlled  by  the  act  of  9  Geo. 
IV,  c.  14,  §  1,  known  as  Lord  Tenterdeu's  act,  which  provides 
that  the  promise  shall  be  in  writing,  and  then,  that  the 
promise  shall  only  affect  the  executor  making  it.  Previous 
to  that  act,  the  law  had  not  been  sufficiently  declared  by  the 
English  courts  to  regard  it  as  settled.  In  Tidlock  v.  Dunn, 
et  al.,  Executors,  Ryan  &  Moody  416,  Lord  Chief  Justice 


NOVEMBER  TERM,  1872.  45 

Shreve  v.  Joyce. 

Abbott,  (afterwards  Lord  Tenterden,  and  the  author  of  the 
act  referred  to,)  at  nisi  pr-ius  in  non-suiting  the  plaintiff, 
remarked,  "  that  the  promise  by  one  only  is  not  enough  to 
entitle  the  plaintiflf  to  recover;  there  ought  to  be  a  promise 
by  both."  Afterwards,  in  the  case  of  McCulloch  v.  Dawes 
et  ciL,  Ex'rs,  ^  D.  &  R.  385,  the  same  Chief  Justice,  sitting 
in  King's  Bench,  held,  under  the  facts  of  that  case,  that  there 
was  not  sufficient  evidence  to  raise  a  promise  by  one  executor, 
but  did  not  question  the  effect  of  it  upon  the  other,  had  it  been 
made.  In  Scholey  v.  Waltoyi,  12  31.  &  W.  509,  (after  the  act 
of  9  Geo.  IV^  which  was  an  action  by  the  payee  of  a  note 
against  the  defendants  as  surviving  executors,  it  was  decided, 
on  the  question  of  an  alleged  payment  by  the  deceased  execu- 
tor, (the  act  referred  to,  leaving  the  effect  of  a  payment 
undisturbed,)  that  what  was  claimed  as  a  payment  was  not 
made  in  a  representative  character ;  but  Baron  Parke,  in 
referring  to  the  case  of  TuUock  v.  Dunn,  remarked,  that  it 
seemed  to  him  that  that  case  was  founded  in  justice  and  good 
sense,  and  ought  to  be  followed.  That,  however,  was  a  mere 
dictum  in  the  cause.  Abinger,  C  B.,  seemed  differently 
inclined,  so  far  as  it  can  be  gathered  from  his  opinion.  Some 
little  other  dicta  may  be  found,  but  the  only  direct  adjudica- 
tion upon  the  subject  in  the  English  courts  is  the  case  of 
Tullock  V.  Dunn,  and  that  has  only  the  force  of  a  nisi  jprius^ 
decision. 

The  decisions  of  other  states  differ  very  much.  The  rule 
in  Massachusetts  is,  that  the  promise  by  one  executor  will 
avail  against  them  all.  Emerson  v.  Thompson,  16  Mass.  431. 
In  New  York,  the  doctrine  appears  to  be  the  same,  although 
slightly  questioned.  Johnson  v.  Beardslee,  15  Johnson  3; 
Hammon  v.  Huntly,4:  Cowen  494;  Cayuga  Co.  Bk.  v.  Bennett,. 
5  Hill  236.  In  Connecticut  the  rule  is  otherwise.  Peck  v. 
Botsford,  7  Conn.  172.  And  so  also  in  Pennsylvania.  Fritz 
V.  Thomas,  1  Whar.  QQ  ;  Reynolds  v.  Hamilton,  7  Watts  420 ; 
Forney  v.  Benedict,  5  Barr  225;  Clark  v.  MoGuire's  Adm'x, 
11  Casey  259. 

The  discordant  condition  of  the  cases  in  other  states  will 

Vol.  VII.  3 


46  NEW  JERSEY   SUPREME  COURT. 

Slireve  v.  Joyce. 

be  seen  by  reference  to  the  note  to  Whilcomh  v.  Whiting^  1 
Smith's  Lead.  Cas.  857. 

In  New  Jersey,  the  question  is  one  of  first  imj)ressiou,  and 
we  are  at  liberty  to  declare  the  law  as  we  think  most  in 
accordance  with  principle.  The  power  of  a  single  executor  or 
administrator  to  remove  the  bar  of  the  statute  by  a  new  promise 
has  been  seriously  questioned,  and  in  some  states  denied,  but  I 
think  the  law,  as  understood  in  this  state,  both  by  the  profes- 
sion and  as  administered  at  the  circuits,  and  as  sustained  by  the 
weight  of  adjudication  elsewhere,  is  that  such  j)ower  exists. 
All  the  cases  requiring  an  express  promise  are  based  on  that 
assumption.  In  the  case  of  Saltar  v.  Adm'r  of  8alt<ir,  1 
Hald.  405,  the  court,  after  a  plea  of  the  statute  of  limitations 
to  a  promise  by  the  intestate  in  the  declaration,  gave  the 
plaintiff  leave  to  add  a  count,  stating  a  promise  by  the  admin- 
istrator. The  opinion  of  the  court  M^as,  that  "  we  think  the 
application  right,  and  that  it  ought  to  be  granted."  In 
Larason  and  Hoppuck,  Adm^rs,  v.  Lambert,  Adm^r,  7  Halst. 
247,  the  indications  of  the  opinion  of  the  court  are  in  the 
same  direction,  for  it  seems  to  have  been  assumed  that  the 
administrator  could  have  taken  the  case  out  of  the  statute, 
had  the  acknowledgment  or  promise  been  shown  to  have  been 
made  by  him  after  his  appointment  as  administrator,  and 
been  otherwise  suflBcient.  There  may  be  many  cases  where 
in  plain  justice  the  power  should  exist.  An  instance  is  found 
in  the  case  of  Stark  v.  Huidon,  2  Green's  Ch.  311,  on  excep- 
tions to  a  master's  report,  allowing  executors  for  money  paid 
the  Paterson  Bank  for  a  debt  against  the  testator,  not  out- 
lawed at  the  time  of  his  death,  but  where  the  claim  was 
delayed  on  account  of  statements  by  the  executors  that  they 
were  not  in  funds,  but  when  they  were,  would  pay.  The 
executors  did  not  interpose  the  statute,  but  paid  the  demand. 
Chancellor  Vrcom  remarked  in  his  opinion,  that  all  was  done 
in  good  faith  on  both  sides,  and  he  could  not  doubt  that  the 
payment  was  properly  made,  even  though  out  of  the  proceeds 
of  land  devised,  which  had  been  ordered  to  be  sold  for  the 
payment  of  debts.     He  also  stated  that  "  it  would  be  hard 


NOVEMBER  TERM,  1872.  47 


Shreve  v.  Joyce. 


-equity  as  against  the  creditor  to  say  that  because  he  waited  at 
the  soh'citation  and  on  the  promise  of  the  personal  represen- 
tatives, aud  did  not  run  either  the  executors  or  devisees  to 
expense  in  collecting  a  bona  fide  debt  actually  due,  he  is  now 
•to  be  met  by  the  statute  of  limitations,  and  have  his  debt 
taken  away." 

At  the  common  law,  the  defendant  is  bound  to  plead  the 
statute  if  he  would  avail  himself  of  it,  and  tiie  mere  failure 
of  an  executor  to  do  it  by  which  a  recovery  is  had,  does  not 
in  itself  make  the  executor  liable  to  a  devastavit.  2  Wms.  on 
Ex'rs  1535. 

In  Pennsylvania,  where  an  executor  may  still  plead  the 
statute  after  a  new  promise,  it  has  been  held  that  lie  is  not 
bound  to  plead  the  statute,  because  he  may  know  the  debt  to 
be  a  just  one,  and  for  that  reason  the  matter  is  left  to  his 
discretion.  Fiitz  v.  Thomas,  1  IFAar.  66.  But,  as  remarked 
by  the  editors  in  the  note  to  Whitcorab  v.  Whiting,  1  Smith's 
Lead.  Cas.  725,  "  this  seems  to  be  a  concession  of  the  whole 
question,  for  it  is  difficult  to  hold  either  that  such  a  credit 
can  be  claimed  for  the  payment  of  a  debt  which  is  not  legally 
valid,  or  that  the  executor  can  give  the  debt  validity  in  one 
way  and  not  in  another." 

Upon  a  careful  review  of  this  question,  it  must  be  taken 
as  law  in  this  state  that  a  sole  executor  (aud  of  course  if  one, 
all,)  has  the  power  by  a  new  promise  to  remove  the  bar  of  the 
statute.  What  then  will  be  the  effect  of  a  promise  by  one 
when  there  are  two  or  more  executors  ? 

The  object  of  the  new  promise  pleaded  is  not  to  make  the 
representatives  personally  liable,  but  only  to  reach  the  estate 
of  the  deceased.  A  co-executor  can  no  more  be  made  {)er- 
sonally  liable  by  the  new  promise  of  another  executor,  than 
in  any  other  matter  where  the  validity  of  the  act  of  the 
individual  executor  in  binding  the  estate  may  be  unquestioned. 
The  judgment  in  either  case  is  de  bonis  testatoris,  and  there 
oould  be  no  personal  liability  except  where  the  executor  has 
made  himself  chargeable  witli  a  devastavit.  The  result  may 
follow  in  all  cases  of  undisputed    claims  against   the  estate 


48  NEW  JERSEY  SUPREME  COURT. 

Shreve  v.  Joyce. 

where  the  executor  allows  himself  to  be  in  fault.  I  see  no 
good  reason  based  on  the  risk  of  personal  liability,  why  one 
executor  should  not  bind  the  estate  by  a  new  promise.  Is 
there  any  reason  then  arising  out  of  the  relation  of  the  execu- 
tors to  the  estate  why  it  should  not  be  done  ? 

The  question  is  not  as  to  the  effect  of  a  mere  admission  by 
one  executor  as  exclusive  proof  of  an  original  debt,  but  of 
the  effect  of  a  new  promise  to  bar  the  statute,  where  the  origi- 
nal debt  is  established  and  forms  the  consideration  of  it. 

Each  executor  is  a  representative  of  the  whole  estate.  Co- 
executors  are  regarded  in  law  as  an  individual  person,  and 
by  consequence  the  acts  of  any  one  of  them  in  respect  of  the 
administration  of  the  effects  are  deemed  to  be  the  acts  of  all,, 
for  they  have  all  a  joint  and  entire  authority  over  the  whole 
property.     2  Wms.  on  Ex'rs  810,  and  notes. 

Acts  done  by  any  one  of  them,  relating  either  to  the  de- 
livery, gift,  sale,  payment,  promise  or  release  of  the  testator's 
goods,  are  the  acts  of  all.  Bacon's  Abr.  Ex'rs  &  Adm-rs  3 ; 
2  Starkie's  Ev.  32,  note.  See  also  cases  in  note  to  2  Wms.  on 
Ex'rs  810. 

The  release  of  a  debt  by  one  executor  is  valid  so  as  to  bind 
the  rest,  provided  of  course  there  is  no  fraud.  The  ordinary 
authority  of  each  executor  extends  to  the  testator's  whole 
estate  to  be  administered,  and  the  act  of  one  in  that  respect 
is  the  act  of  all.  That  is  the  general  rule,  but  with  exceptions 
where  trusts  are  to  be  executed  in  reference  to  real  estate  or 
other  special  matters  requiring  the  action  of  all,  and  also  sub- 
ject to  this,  that  each  is  not  generally  personally  liable  for  the 
other.  The  one  executor  is  not  the  agent  of  the  other  so  as 
to  bind  him  personally,  but  each  is  the  entire  representative 
of  the  estate  to  bind  that. 

The  very  nature  of  the  office  in  regard  to  all  the  ordinary 
assets  to  be  administered,  and  in  regard  to  the  ascertainment, 
adjustment  and  satisfaction  of  liabilities,  and  the  power  over 
assets  is  such  as  to  embrace  within  its  scope  as  well  debts 
barred  by  the  statute,  if  in  justice  they  should  be  paid,  as 
those  not  barred. 


NOVEMBER  TERM,  1872.  49 

Shreve  v.  Joyce. 

Assuming  that  the  authority  exists  in  all  of  the  executors 
to  relieve  from  the  statute,  there  is  no  reason  in  principle  why- 
one  is  not  as  competent  to  exercise  it  as  all.  It  comes  within 
the  general  scope  of  his  representative  duties,  and  after  exam- 
ining the  cases  holding  the  contrary  view,  I  am  satisfied  that 
they  are  based  on  arbitrary  decision,  without  any  solid  reason 
for  making  the  exception.  No  argument  from  the  danger  of 
fraud  by  one  executor  is  tenable,  for  the  co-executor  can 
always  set  up  fraud  or  collusion  in  the  promise,  or  dispute 
the  original  debt,  or  show  payment.  Executors  can  also  plead 
•different  pleas  if  necessary.  2  Wms.  on  Ex'rs  1654 ;  Elwell  v. 
Quash,  1  Strange  20. 

On  these  questions,  the  staleuess  of  the  claim  would  also 
have  its  due  weight,  as  well  as  any  other  circumstance  show- 
ing fraud  or  payment. 

An  executorship  is  a  matter  of  personal  trust  by  the  testator, 
and  there  is  always  some  hazard  to  be  run,  yet  a  co-executor 
can,  if  so  disposed,  protect  the  estate  from  fraud  and  imposi- 
tion. Besides,  the  courts,  on  settlement  of  executors'  accounts, 
where  the  power  of  the  office  has  been  abused,  could  make  an 
executor  personally  account.  The  result  is  that  one  of  two 
or  more  executors  can  bind  the  estate  by  a  new  promise. 

The  remaining  question  is,  whether  the  character  of  the 
promise  in  this  case  is  sufficient.  The  testator  died  in  March, 
1863.  The  defendants  are  his  surviving  executors.  He  made 
his  promissory  note  March  26th,  1858,  for  $650,  payable  to 
the  plaintiff  or  order,  ninety  days  after  date.  Several  credits 
were  endorsed  in  the  lifetime  of  the  testator,  but  at  his  death 
a  considerable  part  of  it  was  yet  due.  The  substance  of  the 
evidence  before  us  is,  that  in  the  presence  of  a  witness  Shreve 
had  a  talk  with  the  executor,  Japhet,  twice  about  the  note; 
that  the  first  was  in  the  spring  of  1865,  when  Shreve  asked 
Japhet  about  the  money,  and  Japhet  said  they  had  not  yet 
settled  up  the  estate ;  that  the  s'econd  talk  was  in  the  follow- 
ing spring,  when  Shreve  again  asked  him  about  the  money 
for  the  payment  of  the  note,  and  Japhet  said  they  had  about 
settled  up  the  estate,  or  that  he  was  about  to  settle  up  the 


50  NEW  JERSEY  SUPREME  COURT. 

State,  Hill,  Pros.,  v.  Hansom,  Collector. 

estate,  and  would  pay  him  soon.  The  application  of  the  con- 
versation to  the  note  is  quite  evident,  and  the  promise  to  pay 
is  express.  The  suit  was  commenced  (as  appeared  on  the 
argument,)  in  July,  1869,  over  three  years  after  the  promise. 
A  reasonable  time  had  much  more  than  elapsed  to  give  the 
promise  full  effect.  That  part  of  the  remark  that  they  had 
about  set:led  up  the  estate,  or  that  he  was  about  to  settle  up 
the  estate,  does  not  qualify  tiie  promise  so  as  to  make  it  con- 
ditioned upon  the  settlement.  That  is  not  the  fair  construction. 
Whether  a  promise  can  be  implied  against  an  executor  has- 
given  rise  to  much  diversity  of  opinion,  but  however  that 
may  be,  the  promise  in  question  is  express,  and  therefore  free- 
from  difficulty.  No  intimation  is  intended  against  the  right 
to  imply  a  promise  against  an  executor  under  some  circum- 
stances the  same  as  against  any  one  else,  for  it  is  difficult  to- 
understand  why  the  promise  may  not  be  proved  against  ex- 
ecutors in  the  same  way  as  in  other  cases,  being  always  suffi- 
ciently careful  to  see  that  the  deduction  is  properly  drawn 
from  the  facts. 

The  Circuit  Court  should  be  advised  in  answer  to  the 
question  propounded,  that  the  evidence  was  sufficient  to  war- 
rant a  verdict  for  the  plaintiff. 

Cited  in  Mutual  Life  Ins.  Co.  v.  Sturges,  6  Siew.  Eq.  328 ;  Everitt  v. 
Williams,  16  Vr.  140. 


THE  STATE,  ELIZA  HILL,  PROSECUTRIX,  v.  GEORGE  HAN- 
SOM, COLLECTOR  OF  TAXES  OF  RARITAN. 

Where,  under  an  order  of  the  Court  of  Chancery,  lands  are  sold,  and  a 
proportion  of  the  proceeds  invested  on  bonds  and  mortgages,  for  the 
use  of  the  widow,  in  lien  of  her  estate,  as  tenant  in  dower,  a  tax  can 
be  levied  only  upon  the  amount  of  interest  which  had  become  due  and 
was  unpaid  upon  the  bonds  and  mortgages  at  the  time  of  the  assess- 
ment. 


On  certiorari.     In  matter  of  taxation. 

Argued  at  the  June  Term,  1872,  before  Justices  Daleim-^ 
PLE,  Depue  and  Van  Syckel. 


NOVEMBER  TERM,  1872.  51 

State,  Hill,  Pros.,  v.  Hansom,  Collector. 

For  the  prosecutor,  A.  V.  Van  Fleet. 

For  tlie  defendant,  Geo.  A.  Allen. 

Daleimple,  J.  Under  an  order  ot  the  Court  of  Chan- 
cery, certain  lands  in  which  the  prosecutrix  had  an  estate  in 
dower  were  sold,  and  a  proportion  of  the  proceeds  invested 
on  bonds  and  mortgages  for  the  use  of  prosecutrix  in  lieu  of 
her  estate,  as  tenant  in  dower.  The  condition  of  the  bonds 
and  mortgages  is,  that  the  interest  accruing  on  the  principal 
sums  shall  be  paid  to  the  prosecutrix  on  the  first  day  of  April 
in  each  and  every  year  during  her  life,  and  that  the  principal 
shall  be  paid  to  certain  persons  named,  immediately  after  her 
death.  In  the  year  1871,  the  prosecutrix  was  assessed  in  the 
township  of  Raritan,  in  the  county  of  Hunterdon,  on  the  full 
amount  of  these  bonds  and  mortgages.  The  legality  of  this 
tax  is  brought  in  question  by  this  certiorari.  The  contention 
of  the  counsel  of  prosecutrix  is,  that  inasmuch  as  the  prose- 
cutrix is  entitled  to  no  part  of  tiie  fund  which  is  put  at  in- 
terest, she  cannot  legally  be  assessed  thereon.  By  the  fourth 
section  of  the  act  of  1866,  {Nix.  Dig.,  p.  951,  §  4,)*  it  is 
declared  that  the  term  personal  estate,  as  used  in  that  act, 
shall  be  construed  to  include  debts  due  or  owing,  whether  on 
contract,  note,  bond,  mortgage  or  book  account,  public  stocks 
and  stocks  in  corporations,  whether  said  personal  estate  be 
within  or  without  this  state.  If  the  prosecutrix  is  liable  to 
taxation  on  the  principal  of  the  bonds  and  mortgages  in 
question,  it  must  be  because  they  secure  debts  due  or  owing 
to  her.  But  such  it  is  apparent  is  not  tlie  case  in  law  or  fact. 
They  are  made  to  the  Chancellor,  and  conditioned  for  the 
payment  of  interest  to  prosecutrix  during  lier  life,  and  of  the 
whole  principal  sum  to  other  persons  or  their  legal  repre- 
sentatives, after  her  death.  The  prosecutrix  could  be  legally 
taxed  for  the  interest  which  had  accrued  up  to  the  time  of  the 
assessment,  and  for  no  more.  It  was  held  in  the  case  of  The 
State  V.  Cornell,  2  Vroom  374,  that  the  holder  of  an  annuity 
bond  can  be  taxed  only  on  the  sum  actually  due  and  payable 

*Bev.,  p.  1151,  ?  63. 


52  NEW  JERSEY  SUPREME  COURT. 


State,  Jones,  Pros.,  v.  Carragan,  Collector. 


at  the  time  of  the  assessment.  In  that  case  it  is  said  that  the 
bond  did  not  secure  any  principal  sum  from  which  the  annu- 
ity was  to  arise,  but  was  simply  for  the  payment  of  an  annuity 
-chargeable  on  the  obligor.  The  case  before  us  is  different. 
The  bonds  secured  by  mortgages  represent  principal  sums 
which  are  payable  with  interest.  The  interest  being  made 
payable  to  the  prosecutrix  in  lieu  of  her  estate  in  dower,  would 
be  apportioned  if  she  should  die  between  two  pay  days.  The 
persons  in  remainder  are  entitled  to  the  principal  fund,  and 
the  prosecutrix  to  the  interest  during  her  life,  whether  that 
life  shall  terminate  at  or  before  the  time  when  the  annual 
payment  of  interest  shall  become  due.     1  Swanston  349,  n. 

The  assessment  must  be  amended  in  conformity  to  these 
views,  and  the  tax  be  levied  only  upon  the  amount  of  interest 
which  had  become  due  and  was  unpaid  upon  the  bonds  and 
mortgages,  when  in  contemplation  of  law  the  assessment  wa.s 
made. 

Cited  in  Stale,  Wyekoff,  pros.,  v.  Nunn,  10  Vr.  422 ;  State,  Wyckoff,  pros., 
V.  Jones,  10  Vr.  650;  State,  Gano,  pros.,  v.  Apgar,  12  Vr.  230;  Trustees, 
<fec.,  V.  Trenton,  3  Slew.  Eq.  667. 


THE  STATE,  WILKINSON  E.  JONES,  PROSECUTOR,  v.  JOHN 
H.  CARRAGAN,  COLLECTOR,  &c.,  BAYONNE. 

Where  a  street  was  laid  out  by  certain  so  called  map  and  grade  commis- 
sioners, whose  only  duty  it  was  to  adopt  a  certain  scheme  for  streets 
and  avenues,  which  streets  and  avenues  might  or  might  not  thereafter 
be  opened  and  devoted  to  public  use,  and  several  years  after  sucli  lay- 
ing out  and  before  the  ordinance  opening  the  street  was  passed,  the 
land  owner  erected  buildings  within  the  line  of  the  street  so  laid  out, 
Held— 

That  while  the  opening  of  the  street  was  thus  in  abeyance,  the  land 
owner  was  not  deprived  of  the  riglil  to  use  his  land  in  any  lawful 
manner,  and  not  to  allow  him  for  his  buildings  erected  before  the  ordi- 
nance opening  the  street  was  passed,  would,  in  substance,  be  to  allow  a 
taking  of  private  property  for  public  use,  without  making  any  just 
compensation  therefor. 


NOVEMBER  TERM,  1872.  53 

State,  Jones,  Pros.,  v.  Carragan,  Collector. 

On  certiorari  to  set  aside  assessment  for  the  opening  of 
«treet  in  the  city  of  Bayonne. 

Argued  at  June  Term,  1872,  before  Justices  Dalrimple, 
Depue,  and  Van  Syckel. 

For  the  prosecutor,  Wm.  A.  Lewis. 

For  the  defendant,  L.  Ahbett. 

The  opinion  of  the  court  was  delivered  by 

Dalrimple,  J.  All  objections  to  the  assessment,  on  the 
ground  that  the  notice  of  application  for  the  opening  of  the 
street,  was  not  given  as  required  by  the  city  charter,  are  con- 
sidered untenable,  because  no  such  objections  are  specified  in 
the  reasons  filed.  If  the  prosecutor  desired  to  avail  himself 
of  these  objections,  they  should  have  been  contained  in  the 
reasons,  and  the  defendant  given  an  opportunity  to  take 
evidence  to  show  that  this  apparent  defect  in  the  proceedings 
has  no  existence  in  fact,  {Laws  of  1869,  p.  1211,  §  2,)  nor  is 
the  court  willing  to  interfere  with  the  determination  of  the 
commissioners  in  respect  to  the  amount  of  the  assessment  for 
benefits  or  damages.  The  evidence  does  not  satisfy  us  that 
any  such  mistake  has  been  made  in  respect  to  these  questions 
of  fact,  as  would  justify  a  reversal  of  the  assessment  on  this 
ground,  we  are  not  prepared  to  hold,  as  the  evidence  is  pre- 
sented to  us,  that  the  prosecutor  has,  in  this  regard,  been 
injured. 

The  assessment  must,  however,  be  set  aside,  on  the  ground 
that  the  prosecutor  was  not  allowed  for  his  buildings  within 
the  line  of  the  street,  erected  before  the  ordinance  opening 
the  street  was  passed.  The  answer  to  this  objection  is,  that 
the  street  was  laid  out  by  certain  so-called  map  and  grade 
commissioners,  several  years  before  the  buildings  were  erected, 
and  that  from  the  time  of  such  laying  out  of  the  street,  the 
land  owner  could  not  rightfully,  as  against  the  public,  erect 
improvements  within  the  line  of  the  street  and  compel  the 
public  to  pay  for  them.     But  it  will  be  found,  by  an  exami- 


54  NEW  JERSEY  SUPREME  COURT. 

State,  Long  Dock  Co.,  Pros.,  v.  Haight,  Receiver. 

nation  of  tlie  several  acts  of  the  legislature,  relating  to  the 
subject,  that  the  only  duty  of  the  map  and  grade  commis- 
sioners, was  to  adopt  a  certain  scheme  for  streets  and  avenues,, 
which  streets  and  avenues  might  or  might  not  thereafter  be 
opened  and  devoted  to  public  use,  whether  they  would  be  or 
not,  depended  on  a  variety  of  circunislances. 

We  do  not  think,  while  the  opening  of  the  street  was  thus 
in  abeyance,  the  land  owner  was  deprived  of  the  right  to  use 
his  property  in  any  lawful  manner.  To  so  hold  would  be  in 
substance  to  allow  a  taking  of  private  property  for  public  use 
without  making  just  compensation  therefor.  If  the  improve- 
ments should  be  made  in  bad  faith,  with  intent  to  throw  an 
undue  l)urthen  on  the  public,  another  element  would  enter 
into  the  consideration  of  the  question,  which  might  perhaps 
produce  a  different  result.  There  is  however  no  such  ques- 
tion in  this  case. 

The  assessment  against  the  prosecutor  must  be  set  aside> 


THE  STATE,  THE  LONG  DOCK  COMPANY,  PROSECUTOES, 
V.  JOHN  B.  HAIGHT,  RECEIVER  OF  TAXES  OF  JERSEY 
CITY. 

1.  The  act  entitled  "  An  act  relating  to  taxes  to  be  paid  by  the  Erie 
Railway  Company  for  certain  property  owned,  leased,  used,  or  occu- 
pied by  it  in  this  state,"  {Laws  of  1870,  p.  1168,)  relates  to  the  property 
of  the  Long  Dock  Company,  used  or  occupied  by  the  said  railway 
company,  and  therefore  embraces  but  one  object,  which  is  suflScienlly 
expressed  in  its  title. 

2.  The  act  is  to  have  effect,  though  it  does  not  in  terms  refer  to  the  act 
"  relative  to  taxes  in  certain  counties  of  this  state."  {Laws  of  1869,  p. 
1225.) 


On  certiorari.     In  matter  of  taxation. 

Argued  at  June  Term,  1872,  before  Justices  Dalrimple,. 
Depue  and  Van  Syckel. 


NOVEMBER  TERM,  1872.  55. 

State,  Long  Dock  Co.,  Pros.,  v.  Haight,  Receiver 
For  the  prosecutors,  L.  Zabriskie. 

For  the  defendant,  J.  Dixon,  Jr. 

The  opinion  of  the  court  was  delivered  by 

Dalrimple,  J.  The  object  of  the  act  of  1870  {Laws  of 
1870,  p.  1168,)  was  to  exempt  from  taxation  all  property- 
east  of  the  westerly  side  of  Bergen  Hill,- owned,  used,  or 
occupied  by  the  Erie  Railway  Company,  or  leased  by  it  of 
the  Long  Dock  Company,  except  a  tax  of  one-half  of  one- 
per  cent,  upon  the  cost  of  the  real  estate  owned,  used,  occu- 
pied, or  leased  by  the  Erie  Railway  Company,  situate  as  above 
mentioned. 

The  act  exempts  only  the  property  of  the  Long  Dock 
Company,  leased,  used,  or  occupied  by  the  Erie  Railway 
Company.  It  therefore  embraces  but  one  object,  which  is 
expressed  in  its  title,  which  is  "  An  act  relating  to  taxes  to 
be  paid  by  the  Erie  Railway  Company  for  certain  property 
owned,  leased,  used,  or  occupied  by  it  in  this  state." 

There  are  no  words  in  the  act  expressly  referring  to,  and 
repealing  by  name,  the  act  of  1869,  [Laios  o/ 1869,  p.  1225,) 
yet  it  declares,  in  section  four,  that  all  acts  and  parts  of  acts, 
either  general  or  special,  public  or  private,  inconsistent  with 
that  act  (of  1870)  be  repealed,  and  that  no  municipal  power 
or  arrangement  whatever,  shall  be  set  up  to  defeat  its  true 
intent  and  meaning,  without  now  deciding  how  far  it  is  in 
the  power  of  the  legislature  to  bind  subsequent  legislatures 
as  to  what  shall  be  the  form  of  a  repealing  statute,  I  hold, 
considering  the  object  of  the  act  of  1869,  as  well  as  that  of 
1870,  and  the  broad  terms  of  the  repealing  section  of  the 
latter  act,  that  the  act  of  1870  is  to  have  effect,  though  it 
does  not  refer  in  terms  to  the  act  of  1869. 

It  would  seem  that  the  exemption  in  the  act  of  1870  is 
absolute,  and  protects  the  company  from  taxation,  except  in 
the  mode  provided,  whether  the  map  and  plan  mentioned 
in  the  act  have  been  filed  in  the  secretary  of  state's  office  or 
not.  However  this  may  be,  we  think  it  sufficiently  appears- 
that  such  plan  and  map  have  been  filed. 


66  NEW  JERSEY  SUPREME  COURT. 

State,  Morris  and  Essex  R.  R.  Co.,  Pros.,  v.  Jersey  City. 

As  we  nnderstaud  it  to  have  been  admitted  on  the  argu- 
ment, that  certain  property  on  the  west  of  the  westerly  side 
of  Bergen  Hill,  not  coming  within  the  exemption,  is  embraced 
:n  the  assessment  brought  up,  the  tax,  to  that  extent,  is  legal, 
and  must  be  affirmed,  and  reversed  as  to  the  remainder.  If 
the  parties  cannot  agree  as  to  the  amount  the  company  is 
liable  to  pay,  under  this  decision,  it  may  be  referred  to  a 
commissioner  to  ascertain  and  report  the  fact  to  the  court. 


THE    STATE,  THE    MORRIS    AND    ESSEX    RAILROAD  COM- 
PANY, PROSECUTORS,  v.  JERSEY  CITY. 

1.  By  the  decision  of  the  Court  of  Appeals  in  the  Tide  Water  Com- 
pany's case,  it  became  the  established  law  of  this  state  that  the  power 
to  assess  the  expenses  of  local  public  improvements  on  property  pe- 
culiarly benefited,  is  limited  in  amount  to  the  benefit  conferred. 

'2.  Lands  acquired  for  a  public  use  by  a  corporation  under  legislative 
authority,  which  are  essential  to  the  exercise  of  its  corporate  fran- 
chises, and  are  held  in  good  faith  for  tiiat  purpose,  must  be  regarded 
for  purposes  of  taxation  as  devoted  to  that  public  use.  In  assessing 
lands  so  circumstanced  for  local  improvements,  the  increase  in  their 
present  market  value  is  not  the  proper  basis  of  as.sessment;  if  not 
benefited  in  their  present  use  by  such  improvement,  the  assessment 
should  be  made  on  a  valuation  depending  on  the  probability  that  they 
may  thereafter  be  converted  to  other  uses. 

5.  In  assessing  depot  grounds  of  a  railroad  company  having  an  exemp- 
tion from  taxation  in  its  charter  for  benefits  derived  from  local  im- 
proveraenis,  supposed  benefits  arising  from  the  probable  increase  of 
business  in  consequence  of  increased  facilities  of  access  to  its  depot, 
cannot  be  made  the  basis  of  assessment.  An  assessment  on  that  prin- 
ciple would  be  a  tax  on  the  business  of  the  company  in  violation  of 
the  exemption  in  the  act  of  incorporation. 


Argued  at  February  Term,  1872,  before  Justices  Bedle, 
Daleimple  and  Depue. 


NOVEMBER  TERM,  1872.  57 

State,  Morris  and  Essex  R.  R.  Co.,  Pros.,  v.  Jersey  City. 
For  the  prosecutor,  J.  Vanatta. 

For  the  defendant,  J.  Dixon,  Jr. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J,  The  writ  in  this  case  removes  an  assessmeut 
upon  the  lands  of  the  proseeutors  to  defray  the  costs  and 
expenses  of  paving  and  improving  Prospect  street. 

The  lands  on  which  the  assessment  was  made  were  acquired 
by  the  company  for  depot  purposes,  and  are  either  in  actual 
use  for  side  tracks  or  are  being  prepared  by  filling  in  for  that 
purpose.  They  are  the  same  premises  which  were  held  by 
this  court  to  be  exempt  from  taxation  for  general  purposes 
under  the  clause  in  the  prosecutor's  charter  exempting  them 
from  tax.  State  v.  Haight,  6  Vroom  40.  But  in  the  case  of 
The  State,  The  Protestant  Foster  Home  Society,  Pros.,  v.  The 
City  of  Neioarh,  6  Vroom  157,  it  was  held  that  the  word  tax 
in  the  exempting  clause  of  a  charter  similar  to  that  in  the 
charter  of  the  prosecutors,  refers  exclusively  to  ordinary  public 
taxes,  and  does  not  include  assessments  made  to  defray  the 
costs  and  expenses  of  local  public  improvements.  The  prose- 
cutors are  not  entitled  to  be  relieved  of  this  assessment  by  force 
of  the  exemption  from  taxation  in  their  act  of  incorporation. 

It  is  claimed  that  the  assessment  is  illegal  and  void  for  the 
reason  that  the  company's  property  is  not  benefited  by  the 
improvement.  By  the  decision  of  the  Court  of  Appeals  in 
the  Tide  Water  Company's  case,  it  became  the  established 
law  of  the  state  that  the  power  to  assess  the  costs  and  expenses 
of  public  improvements  on  property  peculiarly  benefited,  is 
limited  in  amount  to  the  extent  of  the  benefit  conferred,  and 
that  an  assessment  beyond  that  limit  is  illegal  and  void,  as  a 
taking  pro  tanto  of  private  property  for  public  use  without 
compensation.  The  Tide  Water  Co.  v.  Costar,  3  C  E.  Green 
519.  The  act  of  1871,  which  gave  this  court  power  to  de- 
termine disputed  questions  of  fact  on  certiorari,  was  designed 
to  enable  the  court  to  make  inquiry  in  such  cases,  with  a  view 
to  ascertain  whether   taxation    for  local    improvements  was- 


58  NEW  JERSEY  SUPREME  COURT. 

State,  Morris  and  Essex  R.  R.  Co.,  Pros.,  v.  Jersey  City. 

exercised  upon  correct  legal  principles.  {Act'i  1871,  p.  124.)* 
Depositions  have  been  taken  by  the  prosecutors  under  the 
provisions  of  this  statute  toucliing  the  benefits.  They  are  full 
and  clear  to  the  point  that  the  company's  lands  considered  as 
depot  grounds,  will  not  be  benefited  in  the  least  by  the  im- 
provement of  the  street.  No  counter  proof  was  made  by  the 
city,  and  it  must  be  taken  to  be  an  established  fact  that  if  the 
lands  are  viewed  solely  in  the  light  of  the  uses  for  which 
they  were  acquired  by  the  company,  and  to  which  it  is 
intended  that  they  shall  in  the  future  be  applied,  no  benefit 
has  been  realized  from  the  improvement.  Supposed  benefits 
arising  from  the  probable  increase  of  business  in  consequence 
of  increased  facilities  of  access  to  their  depot,  cannot  be  made 
the  basis  of  an  assessment  of  this  character.  Old  Colony  and 
Fall  River  R.  R.  Co.  v.  County  of  Plymouth,  14  Gray  156; 
Boston  and  Maine  R.  R.  Co.  v.  County  of  Middlesex,  1  Allen 
324.  An  assessment  on  that  principle  would  be  simply  a  tax 
on  the  business  of  the  company  in  violation  of  the  exemption 
in  their  act  of  incorporation.  State  v.  Newarhj  3  Dutcher 
186-191. 

The  counsel  of  the  city  contends  that  inasmuch  as  the  lands 
have  not  been  irrevocably  appropriated  to  the  special  use,  and 
as  the  company  may  legally  apply  them  to  other  uses  or  sell 
them  in  the  market  at  any  time,  their  enhanced  market  value 
and  not  the  advantages  resulting  to  them  as  depot  grounds,  is 
the  criterion  of  the  benefit  which  shall  gauge  the  limit  of  the 
burden  which  may  be  imposed. 

In  the  Foster  Home  case,  Mr.  Justice  Woodhull  states  it  to 
be  a  general  rule,  that  in  making  such  assessments,  the  eflPect  of 
the  proposed  improvement  on  the  market  value  of  the  property 
is  only  to  be  regarded,  laying  out  of  view  its  present  use,  and 
the  purpose  of  the  owner  in  relation  to  its  future  enjoyment. 
The  authority  cited  in  support  of  this  decision  is  the  opinion 
of  the  Supreme  Court  of  New  York  In  the  matter  of  William 
and  Anthony  streets,  19  Wend.  680.  As  a  general  rule  it  is 
undoubtedly  correct.  It  is  insisted  that  the  only  exception 
to  this  rule  is  where  the  owner  is  restricted  in  the  power  of 

*Bev.,p.99,  §9. 


NOVEMBER  TERM,  1872.  59 

State,  Morris  and  Essex  R.  E.  Co.,  Pros.,  v.  Jersey  City. 

alienation  by  force  of  couditions  in  the  title  deed.s.  The  cases 
usually  cited  in  support  of  that  construction  do  not  go  on  that 
ground.  In  the  matter  of  the  Mayor,  d'c,  of  N.  F!,  11  Johns. 
77,  an  assessment  for  benefits  in  widening  Nassau  street,  had 
been  laid  on  several  churches,  which  was  resisted  on  the 
ground  that  churches,  by  the  general  act  for  the  assessment  an.d 
collection  of  taxes,  were  not  liable  to  such  assessment,  and  on 
the  further  ground  that  the  amount  assessed  was  dispropor- 
tionate to  the  benefit  derived  from  the  proposed  improvement. 
The  court  denied  relief  on  the  first  ground,  but  for  the  other 
reason  remitted  the  report  to  the  commissioners  for  correction. 
It  was  urged,  in  support  of  the  assessment  that  although  the, 
property  was  then  devoted  exclusively  to  religious  purposes, 
it  might  thereafter  be  secularized  by  the  congregation,  and 
therefore  migi'it  be  regarded  as  deriving  a  permanent  advan- 
tage from  the  widening  of  the  street.  The  court  says  :  "  As 
the  church  property  is  not,  nor  is  it  likely  soon  to  be,  either 
appropriated  to  renting  or  exposed  to  sale,  but  is  devoted 
exclusively  to  religious  purposes,  the  benefit  resulting  to  it  by 
the  improvement  of  Nassau  street,  must  be  small  in  compar- 
ison with  that  of  other  property,  and  it  therefore  ought  not 
to  contribute  in  the  like  proportion.  It  may  be  considered, 
possibly,  as  benefited,  by  rendering  the  access  to  the  churches 
more  convenient,  and  the  places  more  pleasant  and  salubrious 
by  the  freer  circulation  of  the  air.  This  may  have  some 
influence  on  the  pew  rents,  and  the  ground  may  become  per- 
manently more  valuable.  These,  however,  appear  to  be  small 
and  remote  benefits  to  property  so  circumstanced,  and  to 
charge  the  churches  equally  with  adjoining  private  property 
is  unreasonable  and  extravagant."  No  reference  was  made 
by  the  court  to  the  title  of  the  church  to  the  property,  nor  to 
any  restrictions  on  the  power  of  sale  or  disposition  of  it.  In 
the  case  of  The  Owners,  <fec.,  v.  Mayor  of  Albany,  15  Wend. 
374,  the  objection  was  that  property  belonging  to  the  Albany 
Water  Works  Company  had  been  assessed  without  regard  to 
its  limited  use.  The  property  assessed  had  been  conveyed  to 
the  company  without  any  restriction  as  to  its  user.     In  deliv- 


60  NEW  JERSEY  SUPREME  COURT. 

State,  Morris  and  Essex  R.  E.  Co.,  Pros.,  v.  Jersey  City. 

ering  the  opinion  of  the  court,  Savage,  C.  J.,  says :  "  Should 
the  reservoir  of  the  company  be  located  in  some  other  place 
*  *  *  their  lot,  (on  which  the  assessment  was  laid,) 
might  be  used  for  building  lots;  it  was  therefore  subject  to 
assessment ;  in  my  opinion  that  assessment  should  have  been 
only  nominal ;  those  whose  province  it  was  to  decide  that 
question  thought  otherwise ;  whether  they  were  right  or  not 
depends  on  the  probability  there  is  that  the  lots  may  hereafter 
be  converted  to  uses  other  than  those  to  which  they  are  now 
appropriated."  The  assessment  was  affirmed,  the  court  not 
having  the  power  which  this  court  has  under  the  act  of  1871 
to  review  assessments  on  questions  of  fact.  In  the  Maryland 
case,  the  question  of  the  amount  of  the  assessment,  or  the 
principles  on  which  it  should  have  been  made,  was  not  under 
consideration.  The  single  question  mooted  for  decision  was 
the  effect  of  the  clause  of  exemption  from  taxation  in  the 
charter  of  the  company.  Mayor  of  Baltimore  v.  Proprietors 
of  Gi'een  Mount  Cemetery,  7  Maryland  517. 

In  the  Foster  Home  case  the  prosecutors  were  not  restricted 
to  any  place  in  which  to  exercise  the  charity  for  which  they 
were  incorporated.  They  might  exercise  it  anywhere  within 
the  city  of  Newark.  The  lands  assessed  were  held  with  a 
power  of  sale  or  disposition  at  pleasure.  It  was  the  ordinary 
case  of  the  holding  of  a  parcel  of  land,  which  was  con- 
venient but  not  in  itself  necessary  to  the  execution  of  corporate 
franchises,  by  a  corporation  whose  charter  contained  an  ex- 
emption only  from  taxation  for  general  public  purposes. 
They  were  at  liberty  to  enter  the  market  as  vendors  whenever 
they  cho.se,  without  abandoning  their  franchises  or  crippling 
the  operations  of  their  charity.  There  was  nothing  in  their 
title  or  in  the  situation  or  condition  of  the  property,  or  in  the 
need  of  the  prosecutors,  growing  out  of  the  nature  of  the 
duties  for  the  performance  of  which  the  corporation  was 
created,  that  prevented  their  selling  the  property  whenever 
its  increased  value  because  of  the  public  improvement,  made 
a  disposition  of  it  desirable. 

In   the   case   now  before    the   court,  the    prosecutors   are 


NOVEMBER  TERM,  1872.  61 


State,  Morris  and  Essex  R.  R.  Co.,  Pros.,  v.  Jersey  City. 

restrained  in  the  exercise  of  their  corporate  functions,  to  the 
line  of  operation  they  selected  in  the  location  of  their  route 
of  railroad.  They  cannot  leave  that  line  and  enter  the  mar- 
ket as  sellers  of  lands  used  in  the  operation  of  their  road, 
without  being  deprived  of  the  benefits  of  their  franchises.  It 
is  physically  and  legally  possible  for  every  canal  company  in 
the  state  to  fill  up  its  canal  and  basins,  and  for  every  railroad 
company  to  remove  its  rails,  and  put  in  the  market  such  of 
their  lands  as  they  may  hold  in  fee,  but  it  is  highly  improba- 
ble that  that  course  will  ever  be  pursued  as  a  means  of  ob- 
taining, by  a  sale  of  such  lands,  the  benefits  of  local  improve- 
ments, the  cost  of  which  has  been  borne  by  others. 

The  lands  assessed  were  acquired  by  the  prosecutors  for  a 
public  use  under  legislative  authority.     It  has  not  been  sug- 
gested that  they  were  acquired  for  any  other  ulterior  purpose 
in  fraud  of  the  powers  granted,  or  that  there  is  the  remotest 
probability  that  they  will  ever  be  converted  to  any  other  use. 
The  expense  of  reclaiming,  which  gives  to  the  premises  their 
value,  was  incurred  in  preparing  them  for  use  in  the  trans- 
action of  the  company's  business,  and  they  are  used  solely 
for  that  purpose.     Lands  acquired  for  a  public  use  by  a  cor- 
poration under  legislative  powers,  and  in  good  faith  held  for 
that  purpose,  must  be  regarded,  for  purposes  of  taxation,  a& 
devoted  to  that  public  use.      This   principle  has  uniformly 
been  adopted  in  the  application  of  clauses  of  exemption  from 
taxation,  in  determining  whether  property  taxed  is  within  the 
exemption.     This  company  is  exempt  from  taxation,  except 
such  as  is  an  equivalent  for  benefits  derived  fro.m  local  im- 
provements.    In  assessing  lands  so  circumstanced  for  such 
benefits,  the  enhancement  of  their  present  market  value  is 
not  the  proper  basis  of  assessment.     If  not  benefited  in  their 
present  use,  the  assessment,  as  was  said  by  Savage,  C  J.,  in 
the  case  cited  from  15  Wend.,  should  be  made  on  a  valuation 
depending   on   the    probability  that    they  may  hereafter   be 
converted  to  other  uses  than  those  to  which  they  are  now 
appropriated. 

The  charter  of  the  company  is  perpetual,  subject  only  to 

Vol,.  VII.  4 


62  NEW  JERSEY  SUPREME  COURT. 

State  V.  Holmes. 

repeal  by  the  legislature.  It  was  admitted  on  the  argument 
that  the  assessment  was  made  under  the  eighty-fourth  section 
of  the  act  incorporating  Jersey  City,  {Ads  1870,  p.  1210,) 
and  was  laid  on  the  lands  in  question  at  tiie  same  rate  as  on 
other  lands  abutting  on  the  street,  and  without  regard  to 
benefits  realized  by  them  in  tlieir  use  as  depot  grounds. 
Under  the  proof  in  the  case  it  should  have  been  merely 
Dominal. 

The  assessment  is  reduced  to  a  nominal  sum. 

Cited  in  State,  New  Jersey  B.  R.  &  T.  Co.,  pros.,  v.  Elizabeth,  8  Vr.  330. 


THE  STATE  v.  HOLMES. 


Kegularly  a  bill  of  exceptions  should  be  drawn  up  and  sealed  during 
the  trial.  The  practice  has  been  for  the  judge  on  the  exception  being 
taken  and  a  minute  thereof  made,  to  grant  time  for  the  preparation 
of  a  formal  bill  of  exceptions,  and  if  the  bill  be  presented  within  a 
reasonable  time,  to  aflSx  his  seal  to  it :  when  this  is  done  it  relates 
back  as  if  the  bill  was  sealed  at  the  trial. 

The  fifteenth  section  of  the  act  respecting  writs  of  error  {Nix.  Dig. 
289.)*  applies  to  criminal  cases.  A  writ  of  error  in  a  criminal  case 
must  be  sued  out  within  three  years  after  judgment  pronounced. 


On  case  referred  by  Somerset  Oyer. 

Argued  at  November  Term,  1872,  .before  Justices  Dal.^ 
EiMPLE,  Depue  and  Vax  Syckel. 

For  the  state,  J.  V.  Voorhees. 

For  the  defendant,  J.  E.  Carey. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  The  defendant  was  indicted  by  the  grand  jury 
of  Somerset  county  for  larceny,  and  on  a  traverse  of  the  in- 
dictment was  convicted.  The  trial  was  had  before  the  Court 
of  Oyer  and  Terminer  at  the  term  of  April,  1867.     Judgment 

*  Rev.,  p.  373,  2  2. 


NOVEMBER  TERM,  1872. 


63 


State  V.  Holmes. 


•was  pronounced  upon  the  conviction  at  the  same  term  by  the 
imposition  of  a  fine,  which  was  immediately  paid  by  the 
defendant.  Exceptions  were  taken  to  the  charge  of  the  court 
and  a  bill  of  exceptions  prepared,  which  was  not  presented  to 
the  court  for  signature  until  the  term  of  May,  1872.  The 
court  refused  to  sign  the  bill  of  exceptions  because  of  the 
great  delay,  and  referred  the  matter  to  this  court  for  its  ad- 
visory ojiinion  as  to  whether  the  bill  of  exceptions  shouM  be 
now  signed. 

By  the  statute  of  Weslminster  II,  which  first  gave  bills  of 
exception,  no  time  was  appointed  when  the  justices  should 
affix  their  seals  to  the  bill  of  exceptions.  Under  this  statute 
the  practice  was  to  require  the  substance  of  the  exception  to 
be  reduced  to  writing,  and  presented  to  the  court  immediately 
on  the  exception  being  taken,  although  it  might  subsequently 
be  drawn  up  in  form.  Wright  v.  Sharpe,  1  Salk.  288 ;  8.  CI, 
11  Mod.  175;  Pochlington  v.  Hatton,  8  Mod.  220;  Gardner 
V.  Bni/lie,  1  B.  &  P.  32. 

In  Wright  v.  Sharpe,  as  reported  in  11  Mod.,  Holt,  C.  J.,  is 
reported  as  saying  that  if  the  party  "  have  thoughts  of  ten- 
dering a  bill  of  exceptions,  minutes  must  be  taken  of  it  at  the 
trial,  and  there  is  no  need  that  it  should  be  put  into  form.  .  . 
He  also  said  that  when  the  minute  is  put  in  writing  at  the 
trial,  it  should  be  left  with  an  officer  of  the  court."  Powell, 
J.,  said  that  ^^  scribal  ezoeptionem,  in  the  statute,  must  be 
understood  to  be  done  at  the  trial."  The  inconvenience  of  a 
different  practice  is  forcibly  pointed  out  by  the  Chief  Justice 
in  the  case  last  cited.  He  says,  "suppose  after  the  trial  is 
over  some  time  the  counsel  come  and  tender  a  bill  of  excep- 
tions to  the  judge,  it  may  be  he  has  forgot  the  thing  insisted 
upon  at  the  trial ;  the  counsel  says  he  remembers  it,  and  so 
the  counsel's  memory  shall  arraign  the  judge." 

The  act  in  force  in  this  state  is  more  explicit  than  the 
statute  of  Westmiyister  II.  It  expressly  provides,  "  that  when 
any  person  impleaded,  &c.,  shall  allege  an  exception,  praying 
that  the  justice  or  justices  will  allow  it,  if  he  who  alleged 
the  exception  instantly  writes  the  same,  and  requires  that  the 


64  NEW  JERSEY  SUPREME  COURT. 

State  V.  ITolines. 

justice  or  justices  will  put  his  or  their  seal  or  seals  in  testi- 
mony thereof,  such  justice  or  justices,  or  the  greater  part  of 
them  present,  shall  do  so."     Nix.  Dig.  748.* 

The  mode  of  enforcing  compliance  with  the  statute  is  hy 
mandamus,  or  by  mandatory  writ  out  of  chancery.  Sikes  v. 
Hansom,  6  Johns.  279.  Regularly  the  bill  of  exceptions 
should  be  presented  for  signature  during  the  term  at  which 
the  trial  is  had.  If  presented  at  a  subsequent  term,  the  party 
is  without  remedy  if  the  judge  shall  refuse  to  sign  it.  Sikes 
V.  Ransom,  supra;  Midherry  v.  Collins,  9  Johns.  345. 

In  Agnew  v.  CariipbelVs  Adm'r,  2  Harr.  291,  it  was  held 
by  this  court  that  a  bill  of  exceptions  must  be  drawn  up  and 
sealed  at  the  trial,  and  that  no  bill  of  exceptions  shall  be 
afterwards  sealed  without  the  mutual  consent  of  the  attorneys,, 
or  unless  settled  by  the  judges  who  tried  the  cause  in  pursu- 
ance of  an  agreement  made  at  the  time  in  open  court  to  that 
effect.  This  decision  was  examined  and  approved  by  the  same 
court  in  the  subsequent  case  of  Wilson  v.  Moore,  4  Harr.  186. 

In  the  r)onnelly  case,  Chief  Justice  Green  expresses  him- 
self in  favor  of  the  stringent  rule  of  requiring  the  bills  of 
exceptions  to  be  prepared  and  sealed  immediately  during  the 
progress  of  the  trial,  holding  that  the  coart  below  might 
properly  refuse  to  sign,  and  the  court  of  error  would  be 
justified  in  treating  as  nugatory  bills  of  exception  prepared 
after  the  trial.  State  v.  Donnelly,  2  Duteher  465.  The  practice 
has  been  for  the  judge,  on  the  exception  being  taken  and  a 
minute  thereof  made,  to  graut  counsel  time  for  the  prepara- 
tion of  a  formal  bill  of  exceptions,  and  if  the  bill  be  presented 
within  a  reasonable  time  to  affix  his  seal  to  it.  When  this  is 
done  it  has  a  retrospect,  and  shall  relate  back  as  if  it  was 
done  at  the  time.  Wright  v.  Sharpe,  11  Mod.  175.  But  the 
court  in  error,  upou  proof  that  the  bill  of  exceptions  has  been 
improperly  or  irregularly  signed,  may  dismiss  the  same  from 
the  record.  Agnew  v.  Campbell,  supra ;  Shipherd  v.  White, 
3  Cow.  32. 

In  the  present  case,  the  Court  of  Oyer  and  Terminer 
properly  exercised  its  discretion  in  refusing  to  seal  the  bill  of 

*iJct>.,p.  886,  2  242. 


NOVEMBER  TERM,  1872.  65 


State  V.  Holmes. 


•exceptions.  It  was  not  presented  within  a  reasonable  time. 
The  judgment  of  the  court  was  satisfied  immediately  on  its 
being  pi-onounced,  and  has  been  acquiesced  in  for  five  years. 
It  is  alleged  that  that  acquiescence  has  been  occasioned  by  the 
negligent  or  fraudulent  conduct  of  the  defendant's  attorney, 
\vho  was  entrusted  with  the  preparation  of  the  bill  of  excep- 
tions. Even  though  that  be  so,  the  defendant  is  without 
relief  in  this  proceeding.  The  prosecutor  of  the  pleas,  by 
whom  the  indictment  was  tried,  has  gone  out  of  office.  If 
the  judgment  should  on  error  be  reversed,  the  witnesses  on 
the  former  trial  could  not  probably  be  produced,  or  if  pro- 
duced, naturally  would  be  unable  to  recall  the  circumstances 
attending  the  commission- of  the  alleged  offence.  It  was  not 
even  known  on  tiae  argument  here  whether  all  the  judges 
before  whom  the  trial  was  had  were  still  in  commission. 
Under  these  circumstances,  if  the  bill  of  exceptions  should  be 
sealed,  the  court  in  error  would  doubtless  expunge  the  bill  of 
exceptions  from  the  record  as  improvidently  signed. 

We  have  not  referred  to  the  fact  tliat  no  writ  of  error  has 
yet  been  sued  out.  It  was  argued  here  that  a  writ  of  error 
might  be  sued  out  notwithstanding  the  lapse  of  time  since 
judgment  pronounced.  It  was  insisted  that  the  fifteenth 
section  of  the  act  respecting  writs  of  error  [Nix.  Dig.  289,)* 
did  not  apply  to  writs  of  error  in  criminal  cases,  and  that 
therefore  there  is  no  limitation  of  the  time  witliin  which  the 
writ  may  issue  in  a  criminal  case.  In  this  construction  we 
do  not  concur.  The  section  in  question  was  originally  the 
ninth  section  of  a  supplement  to  the  act  to  regulate  the 
practice  of  the  courts  of  law,  which  sui)pleraent  was  passed 
on  the  28th  of  February,  1820.  R.  L.  691.  As  the  section 
stood  in  that  act,  it  provided  that  no  writ  of  error  from  any 
court  of  common  law  should  be  brought  or  allowed  on  any 
judgment  that  should  have  been  or  thereafter  might  be  entered 
or  obtained,  unless  the  same  shall  be  had  or  done  within  three 
years  after  the  judgment  rendered  ;  provided,  &c.  In  the 
revision  of  1846,  the  words  "from  any  coui't  of  common 
Jaw,"  were  omitted,  and   the  section   as  amended  was  trans- 


*iJei;.,  p.  373  I  2. 


66  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Trustees,  &c.,  v.  Township  C!ominittee  of  Keadington. 

ferred  from  the  practice  act  to  the  act  entitled,  "An  act  tO' 
regulate  writs  of  error."  R.  $.  980.  That  this  latter  act 
extends  to  all  causes,  whether  civil  or  criminal,  unless  other- 
wise specified,  is  made  apparent  by  the  fact  that  by  the 
thirteenth  section,  certain  specified  sections  of  the  act  were 
declared  not  to  extend  to  indictments.  As  the  section  in 
question  now  stands,  its  office  is  to  limit  the  time  of  suing 
out  writs  of  error  in  criminal  as  well  as  in  civil  cases. 

The  Court  of  Oyer  and  Terminer  is  advised  not  to  seal  the 
bill  of  exceptions. 


THE  STATE,  THE  TRUSTEES  OF  WHITE  HOUSE  SCHOOL 
DISTRICT,  No.  71,  RELATORS,  v.  THE  TOWNSHIP  COM- 
MITTEE OF  READINGTON  TOWNSHIP,  IN  THE  COUNTY 
OF  HUNTERDON. 

1.  The  legislature  may  create  special  taxing  districts,  defining  their 
limits  in  its  discretion ;  or  designate  certain  occupations,  trades  or 
employments,  as  special  subjects  for  taxation  ;  or  discriminate  between 
difierent  kinds  of  property  in  the  rate  of  taxation ;  or  may  apportion 
the  tax  among  the  classes  of  persons  or  property  made  liable  to  taxa- 
tion, in  such  manner  as  may  seem  fit.  But  when  the  taxing  district 
has  been  defined,  and  the  classes  of  persons,  or  kinds  of  property 
specially  set  apart  for  taxation,  have  been  designated,  the  tax  must  be 
apportioned  among  those  who  are  to  bear  the  burden  upon  the  rule  of 
uniformity. 

2.  A  tax  upon  the  persons  or  property  of  A,  B  and  C  individually 
whether  designated  by  name  or  in  any  other  way,  which  is  in  excess^ 
of  an  equal  apportionment  among  the  persons  or  property  of  the  class 
of  persons  or  kind  of  property  subject  to  the  taxation,  is,  to  the  extent 
of  such  excess,  the  taking  of  private  property  for  a  public  use  without 
compensation. 

3.  The  trustees  of  a  school  district  were,  by  a  special  act  of  the  legisla- 
ture, authorized  to  complete  a  school-house  for  the  district,  and  the- 
township  committee  of  the  township  in  which  the  district  was,  were 
required  to  issue  township  bonds  to  meet  the  expenses  of  the  improve- 
ment, and  were  authorized  to  provide  for  payment  of  such  bonds  by 
taxation  on  the  estates  of  the  inhabitants  of  the  school  district     bui 


NOVEMBER  TERM,  1872.  67 

State,  ex  rel.  Trustees,  &c.,  v.  Townsliip  Committee  of  Readington. 

in  assessing  the  first  amount  directed  to  be  raised  for  that  purpose, 
not  exceeding  $2000,  the  assessor  was  required  to  assess  tiie  amount  so 
ordered  in  excess  of  $1000  only  upon  certain  taxable  inliabitants, 
who  had  not  paid  the  assessment  made  against  them  the  preceding 
year,  for  defraying  the  cost  of  said  building.  The  amount  of  the  taxes 
assessed  in  the  former  assessment  against  such  individuals,  and  for 
which  they  were  delinquent,  was  less  than  two  hundred  dollars,  Ou 
application  for  a  mandamus  to  the  town  committee  to  compel  them  to 
issue  such  bonds,  the  court  denied  the  application  on  the  ground  that 
it  was  doubtful  whether  the  means  of  indemnification  provided  could 
be  made  available  by  the  imposition  of  a  lawful  tax  under  the  pro- 
visions of  the  act. 


On  application  for  a  mandamus. 

By  an  act  of  the  legislature  passed  on  the  14th  of  Febru- 
ary, 1872,  entitled,  "An  act  for  the  purpose  of  raising  money 
to  construct  and  complete  a  public  school  building  in  District 
Number  Eleven,  of  Readington  township,  Hunterdon  county," 
after  reciting  that,  "  whereas,  the  trustees  of  school  district 
No.  11,  of  Hunterdon  county,  have  purchased  a  lot  and  partly 
erected  thereon  a  public  school  building,  which  land  and 
building  when  finished,  and  furniture  necessary  in  said  build- 
ing, will  cost  about  the  sura  of  $6000 ;  and  whereas,  an 
assessment  of  $1000  thereof  was  made  on  the  taxable  inhabi- 
tants of  said  school  district  for  said  purpose  in  the  year  1871, 
which  has  been  paid  by  said  taxable  inhabitants  in  part;  but 
some  of  said  inhabitants  have  not  paid  their  assessment  by 
reason  of  technical  objections  to  the  form  of  the  proceedings 
by  which  the  assessment  was  laid,"  it  was  enacted  that  the 
board  of  trustees  of  said  district  should  be  empowered  to 
finish  the  erection  and  construction  of  said  public  school 
building,  and  to  make  certain  improvements  as  appendages 
thereto,  and  to  expend  for  that  purpose  a  sum  of  money  not 
exceeding  $6000.  By  the  same  act  the  township  committee 
of  the  township  of  Readington  were  required  to  execute  and 
deliver  to  the  trustees  of  the  said  school  district,  bonds  in  the 
name  of  the  township  of  Readington,  in  the  county  of  Hun- 
terdon, to  meet  the  expense  of  such  improvement,  wiiich  said 
bonds  were  to  be  of  such  denominations  as  the  trustees  of  the 


€8  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Trustees,  &c.,  v.  Township  Committee  of  Readington. 

school  district  for  the  time  being  should  direct,  and  were  to 
become  due  and  payable  in  installments  as  directed  in  the  act. 

By  the  third  section  of  the  act,  the  township  committee 
were  "authorized  to  provide  for  the  payment  of  said  bonds, 
and  the  interest  thereon,  as  the  same  shall  become  due  and 
payable,  by  taxation  on  the  estates  of  the  inhabitants  of  said 
school  district  No.  11,  and  on  all  the  lands  liable  to  be  taxed 
therein,  which  taxes  shall  be  assessed,  levied  and  collected 
in  the  same  manner,  at  the  same  time,  and  by  the  same  means 
as  other  township  taxes  are;  but  in  assessing  the  first  amount, 
not  exceeding  $2000,  the  assessor  of  taxes  for  the  said  town- 
ship, for  the  time  being,  shall  assess  the  amount  the  town 
committee  shall  direct  to  be  raised  in  excess  of  §1000  only 
«pou  those  taxable  inhabitants  of  said  school  district  who 
have  not  paid  their  aforesaid  assessment,  made  in  the  year 
1871." 

A  supplement  was  passed  on  the  20th  of  March,  1872, 
correcting  a  clerical  error  in  the  original  act,  by  substituting 
the  words  seventy-one  for  eleven,  in  the  designation  of  the 
school  district  by  number. 

Argued  at  November  Term,  1872,  before  Justices  Dal- 
EiMPLE,  Depue  and  Van  Syckel. 

For  the  relator,  G.  A.  Allen. 

For  the  defendants,  /.  N.  Voorhees  and  A.  Wurts. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  Application  being  made  by  the  school  trustees 
to  the  township  committee  for  the  issuing  of  bonds  to  the 
amount  of  $3500,  under  the  act  above  recited,  the  township 
■committee  declined  to  issue  the  same,  whereupon  application 
was  made  to  this  court  for  a  writ  of  mandamus  to  compel  the 
committee  to  issue  such  bonds. 

The  amount  of  tax  assessed  in  the  school  district  for  the 
building  of  a  school-house  in  the  year  1871  was  $1000.  Of 
this  amount  it  appears  by  the  depositions  that  $807  have  been 


NOVEMBER  TERM,  1872.  69 

State,  ex  rel.  Trustees,  &c.,  v.  Township  Committee  of  Readington. 

collected.  The  residue  is  in  litigation.  The  act  directs  that 
the  first  assessment  upon  the  persons  and  property  in  the 
school  district  liable  to  taxation  to  provide  the  means  of  pay- 
ing the  bonds,  shall  not  exceed  $2000,  and, that  in  assessing 
the  sum  the  township  committee  shall  so  direct  to  be  raised, 
the  amount  in  excess  of  $1000,  shall  be  assessed  only  on  those 
taxable  inhabitants  of  the  school  district  who  have  not  paid 
the  assessment  made  against  them  for  the  year  1871.  Under 
this  section  the  township  committee  are  empowered  to  direct 
the  assessment  of  the  sum  of  $1000  upon  certain  individuals 
who  are  delinquents,  whose  delinquency  in  all  is  less  than 
$200.  It  is  insisted  by  the  defendants'  counsel  that  the  mode 
of  levying  the  tax  contemplated  by  this  act  is  not  a  legitimate 
method  of  taxation,  and  that  therefore  no  adequate  provision 
is  made  for  the  payment  of  the  bonds  of  the  township  by 
taxation  upon  the  school  district. 

The  power  of  the  legislature  to  validate  the  assessment  of 
taxes  which  is  liable  to  be  avoided  for  mere  irregularities  in 
the  proceedings  in  making  the  assessment,  is  well  settled. 
State  V.  Apgar,  2  Vroom  358 ;  State  v.  Town  of  Union,  4  lb. 
350.  The  act  in  question  has  none  of  the  qualities  of  an  act 
validating  the  proceedings  in  levying  the  former  tax.  It  is 
the  assumption  by  the  legislature  of  the  power  to  subject  the 
delinquents  to  a  penalty  of  $1000  for  a  delinquency  of  $200, 
in  the  discretion  of  the  township  committee.  That  this  is  the 
real  import  of  the  act  is  apparent.  Indeed,  the  learned  and 
astute  counsel  who  argued  this  motion  in  behalf  of  the 
relators,  so  clearly  discerned  the  exact  import  of  this  legisla- 
tion that  he  was  driven  to  maintain  before  the  court  that  it 
was  within  the  power  of  the  legislature  to  select  certain 
individuals  as  subjects  of  taxation,  and  impose  upon  them 
individually  such  burdens  as  the  legislature  saw  fit,  even  to 
the  extent  of  the  payment  of  the  state  debt,  or  defraying  the 
entire  expenses  of  the  state  government. 

The  power  of  the  legislature  in  the  matter  of  taxation  is 
said  to  be  unlimited.  Such  undoubtedly  is  the  theory  of  our 
government.     But  it  is  not  every  exaction  made  under  color 


70  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Trustees,  &c.,  v.  Township  Committee  of  Readington. 

of  taxation  that  can  be  supported  as  the  legitimate  exercise 
of  the  sovereign  power  of  taxation.  It  is  of  the  very  essence 
of  taxation  that  it  should  be  equal  and  uniform,  and  that 
where  the  burden  is  common  there  should  be  a  common  con- 
tribution to  discharge  it.  Cooky's  Const.  Law  495.  Not 
that  it  is  essential  to  the  validity  of  taxation  that  it  should  be- 
levied  according  to  rules  of  abstract  justice.  The  legislature 
may  create  special  taxing  districts,  defining  their  limits  in  its 
discretion,  or  designate  certain  occupations,  trades  or  employ- 
ments as  special  subjects  for  taxation  ;  or  discriminate  between 
differents  kinds  of  property  in  the  rate  of  taxation  ;  or  may 
apportion  the  tax  among  tiie  classes  of  persons  or  property 
made  liable  to  taxation,  in  such  manner  as  may  seem  fit.  In 
this  way  inequalities  in  the  siiare  of  the  public  burden,  or 
even  double  taxation  may  arise  without  any  relief  except  by 
appeal  to  the  legislature.  But  when  the  taxing  district  has 
been  defined,  and  the  classes  of  persons  or  kind  of  j)roperty 
specially  set  apart  for  taxation  have  been  designated,  the  tax 
must  be  apportioned  among  those  who  are  to  bear  the  burden 
upon  the  rule  of  uniformity.  Cooky's  Const.  Law,  pp.  493- 
513.  Taxation  operates  upon  a  community,  or  a  class  in  a 
community,  according  to  some  rule  of  apportionment.  When, 
the  amount  levied  upon  individuals  is  determined  without 
regard  to  the  amount  or  value  exacted  from  any  other  indi- 
vidual or  classes  of  individuals,  the  power  exercised  is  not 
that  of  taxation  but  of  eminent  domain.  The  Peopk  v. 
Mayor  of  Bi'ooklyn,  4  Coinstock  420.  A  tax  upon  the  persons- 
or  property  of  A,  B  and  C  individually,  whether  designated 
by  name  or  in  any  other  way,  which  is  in  excess  of  an  equal 
apportionment  among  the  persons  or  property  of  the  class  of 
persons  or  kind  of  property  subject  to  the  taxation,  is,  to  the 
extent  of  such  excess,  the  taking  of  private  property  for  a 
public  use  without  compensation.  The  process  is  one  of  con- 
fiscation and  not  of  taxation. 

But  it  is  argued  that  the  township  committee  may,  in  ex- 
ecuting their  duties  under  the  act,  so  perform  them  as  that  no 
greater   sum  will   be   levied  upon    the  delinquents,  or  their 


NOVEMBER  TERM,  1872.  71 

State,  ex  rel.  Trustees,  &c.,  v.  Township  Committee  of  Readington. 

property,  than  the  amount  of  their  unpaid  tax,  and  that 
therefore  a  valid  tax  may  be  laid  under  the  act.  Tiie  argu- 
ment may  be  sound.  On  that  subject  the  court  ex|)ress  no 
opinion.  For  present  purposes  it  is  sufficient  that  the  act  in 
question  gives  to  the  township  committee  the  power  arbitrarily 
to  impose  a  sum  in  excess  of  such  delinquency.  Nor  does  it 
appear,  except  by  the  recital  in  the  preamble  of  the  act,  that 
the  refusal  of  the  delinquents  to  pay  the  farmer  assessment  is 
based  on  mere  irregularities  in  the  mode  of  assessment.  For 
aught  that  is  shown,  the  legal  objections  to  the  collection  of 
the  tax  assessed  against  them,  are  of  such  a  nature  as  to  be 
beyond  the  power  of  the  legislature  to  remove. 

The  school  district  in  question  is  one  of  the  school  districts 
in  the  township  of  Readington.  The  act  does  not  impose 
upon  the  township  the  burden  of  erecting  the  school  building. 
It  contemplates  that  the  cost  shall  ultimately  be  borne  by  the 
taxable  inhabitants  of  the  district,  although  the  only  means 
of  reimbursement  is  by  the  taxation  provided  for. 

The  court  should  not  award  a  mandamus  to  enforce  this 
compulsory  suretyship  by  the  township  for  the  debts  of  the 
school  district,  where  any  well  grounded  doubt  exists  whether 
the  means  of  indemnification  provided  are  such  as  can  be 
made  available.  It  is  better  to  subject  the  school  district  ta 
the  inconvenience  of  a  delay  until  further  legislative  action 
may  be  obtained,  than  to  involve  the  township  in  a  litigation 
to  enforce  the  collection  of  a  tax  of  doubtful  constitutionality. 

The  application  is  denied,  and  rule  to  show  cause  dis- 
charged. 

Cited  in  State,  McClosky,  pros.,  v.  Chamberlin,  8  Vr.  388 ;  State,  Hoey^ 
pros.,  V.  Collector,  t&c,  10  Vr.  75. 


72  NEW  JERSEY  SUPREME  COURT. 


State,  ex  rel.  Sandford,  v.  Court  of  Common  Pleas  of  Morris. 


THE  STATE,  MICHAEL  SANDFORD,  RELATOE,  v.  THE  COURT 
OF  COMMON  PLEAS  OF  THE  COUNTY  OF  MORRIS. 

1.  The  Chatham  local  option  law  declares  the  retail  of  ardent  spirits 
without  license  to  be  unlawful,  and  provides  that  no  license  shall  be 
granted  if  a  majority  vote  of  the  township  is  for  "  no  license."  Held 
— that  the  act  is  constitutional. 

"2.  That  the  legislature,  under  the  power  to  make  police  regulations,  may 
prohibit  the  retail  of  alcoholic  stimulants. 

3.  That  municipal  corporations  and  townships  may  be  invested  with 
authority  to  regulate  or  prohibit  the  retail  of  intoxicating  drinks. 


On  application  for  mandamus. 

Argued  at  June  Term,  1872,  before  Justices  Dalrimple, 
Depue  and  Van  Syckel. 

For  the  motion,  H.  C.  Pitney. 

Contra,  A.  Mills  and  O.  Parker. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  This  application  is  made  to  test  the 
constitutionality  of  what  is  termed  the  Chatham  local  option 
law. 

The  provisions  of  the  act  {Laws,  1871,^.  1470,)  are  sub- 
stantially that  it  should  be  lawful  for  the  persons  qualified  to 
vote  at  the  next  annual  town  meeting,  to  determine  by  ballot 
wlietlier  thereafter  license  to  sell  spirituous  liquors  should  be 
granted;  that  if  it  should  appear  that  a  majority  of  votes 
were  cast  for  "  no  license,"  it  should  not  thereafter  be  lawful 
to  grant  any  sucli  license  until  otherwise  decided  by  a  contrary 
vote  at  some  subsequent  town  meeting;  that  from  and  after 
the  passage  of  the  act,  it  should  not  be  lawful  for  any  person 
within  said  township,  withoMt  a  licen.se  for  that  purpose  first 
had,  to  sell  by  less  measure  than  one  gallon,  and  any  person 
so  selling  without  license  should  be  adjudged  guilty  of  a  mis- 
demeanor; and  lastly,  that  so  much  and  such  parts  of  all 
acts  and  parts  of  acts  as  are  inconsistent  with  this  act,  be  and 
.are  repealed. 


NOVEMBER  TERM,  1872.  7a 

State,  ex  rel.  Sandford,  v.  Court  of  Common  Pleas  of  Morris. 

At  the  time  prescribed  by  tke  act,  a  majority  of  the  legal 
voters  of  said  township  voted  "  no  license." 

At  the  following  May  Terra  of  the  Morris  Common  Pleas,, 
the  relator,  by  petition,  signed  and  v'erified  as  by  the  act 
"concerning  inns  and  taverns"  is  required,  applied  for  a 
license  to  keep  an  inn  and  tavern  in  Chatham. 

The  court  having  refused  to  entertain  said  application  on 
the  ground  that  it  had  no  power  to  grant  it,  this  court  i& 
asked  to  send  its  writ  of  mandamus  to  the  court  below,  in  aid 
of  the  applicant's  petition. 

The  local  option  law  is  alleged  to  be  in  conflict  with  that 
article  of  our  state  constitution  which  provides  that  the  legis- 
lative power  shall  be  vested  in  a  senate  and  general  assembly. 

It  must  be  conceded  that  this  law  can  have  no  sanction  if 
it  is  a  delegation  of  the  law  making  power  to  the  people  of 
the  township. 

If  the  right  to  declare  what  the  law  shall  be  in  one  case, 
may  be  referred  to  the  people,  the  right  to  do  so  may  be  given 
in  all  cases,  and  thus  the  legislature  may  divest  itself  wholly 
of  the  power  lodged  in  it  by  the  fundamental  law,  until  by 
subsequent  legislation  it  shall  be  resumed.  It  is  also  obvious 
that  it  is  not  competent  to  delegate  to  the  people  the  right  to 
say  whether  an  existing  law  shall  be  repealed  or  its  operation 
suspended.  To  say  that  what  is  now  the  law  shall  not  here- 
after, or  shall  not  for  a  specified  time  be  the  law,  is  in  eifect 
to  declare  the  law  to  be  otherwise  than  it  now  is,  and  is  a 
clear  exercise  of  the  law  making  power.  The  will  of  the  leg- 
islature must  be  expressed  in  the  form  of  a  law  by  their  own. 
act.  If  it  is  left  to  the  contingency  of  a  popular  vote  to 
pronounce  whether  it  shall  take  effect,  it  is  not  the  will  of  the 
law  makers,  but  the  voice  of  their  constituents  which  moulds 
the  rule  of  action.  If  the  vote  is  affirmative,  it  is  law  ;  if  in 
the  negative,  it  is  not  law.  The  vote  makes  or  defeats  the 
law,  and  thus  the  people  are  permitted  unlawfully  to  resume 
the  right  of  which  they  have  divested  themselves  by  a  written 
constitution,  to  declare  by  their  own  direct  action  what  shall 


74  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Sandford,  v.  Court  of  Common  Pleas  of  Morris. 

be  law.  The  cases  upon  this  subject,  so  far  as  tliey  assert  the 
principles  above  stated,  have  ray  entire  concurrence.  Parker 
V.  Commomoenlth,  6  Barr  507  ;  Rice  v.  Foster,  4  Harringfon 
479  ;  3Iaize  v.  State,  4  Ind.  342  ;  State  v.  Parker,  26  Vt. 
357;  Santo  v.  State,  2  Jot^a  165;  Paterson  v.  Society,  d'c,  4 
Za6.  385. 

The  test  will  be  whether  this  enactment,  when  it  passed 
from  the  hands  of  the  law-giver,  had  taken  the  form  of  a 
<;omplete  law.  It  denounces  as  a  misdemeanor  the  selling  of 
liquor  without  license;  so  far  it  is  positive  and  free  from  any 
contingency. 

It  left  to  the  popular  vote  to  determine,  not  whether  it 
should  be  lawful  to  sell  without  license,  but  whetlier  the  con- 
tingency should  arise  under  wliich  license  might  be  granted. 

It  was  not  submitted  to  the  voters  of  Chatham  to  say 
whether  there  should  be  a  majority  vote  in  favor  of  license, 
before  license  could  be  granted ;  the  law  as  framed  declares 
that  there  shall  be  such  majority  vote.  The  operation  of  the 
first  and  second  sections  of  the  act  "concerning  inns  and 
taverns  "  is  not  suspended  by  the  declaration  of  the  popular 
will,  but  the  act  itself  modifies  those  sections,  and  makes  it  a 
•condition  of  granting  license  that  there  shall  be  a  majority 
vote. 

It  is  the  law  which  makes  the  majority  vote  necessary,  and 
not  the  voice  of  the  people. 

Whether  the  vote  is  aye  or  no,  the  law  at  all  times  is  the 
same,  and  requires  the  majority  vote  as  a  condition  precedent 
to  the  granting  of  license. 

If  a  supplement  had  been  passed  requiring  instead  of  twelve 
reputable  freeholders,  the  signatures  of  a  majority  of  the  legal 
voters  of  the  township  to  the  applicant's  petition,  would  its 
constitutionality  be  challenged  ? 

Upon  principle  it  makes  no  difference  whether  the  recom- 
mendation of  the  majority  is  exj)ressed  by  ballot  at  a  town 
meeting,  or  in  the  form  of  a  certificate. 

It  is  competent  for  the  legislature  to  prescribe  the  mode  in 
which  it  shall  be  done. 


NOVEMBER  T£RM,  1872. 


State,  ex  rel.  Sandford,  v.  Court  of  Common  Pleas  of  Morris. 

Under  the  geueral  law,  the  applicant  could  not  call  into 
€xercise  the  power  of  the  court  until  twelve  freeholders 
petitioned  in  the  manner  therein  directed.  Under  the  special 
act  in  question  an  additional  restriction  is  imposed,  but  it  is 
imposed  by  the  law  itself  and  not  by  the  people. 

If  the  twelve  freeholders  under  the  old  law  do  not  certify, 
the  court  is  restrained  from  acting ;  if  they  do  certify,  the 
court  can  exercise  its  discretion.  So  if  the  majority  do  not 
vote  for  license,  the  power  of  the  court  cannot  be  invoked ; 
if  they  do  vote  for  license,  it  may. 

If  the  twelve  freeholders  shall  not  deem  it  conducive  to 
the  public  good  the  privilege  is  denied,  so  if  the  majority 
shall  regard  it  as  inimical  to  the  public  welfare  to  permit 
the.  retail  trade,  the  sale  must  abide  under  the  penalty  de- 
nounced by  the  law.  The  only  difference  is  that  under  the 
special  act  the  majority  express  their  judgment  as  to  all 
applications  in  gross,  while  under  the  general  law  twelve 
freeholders  act  upon  them  in  detail. 

The  fact  that  they  vote  "  no  license  "  does  not  make  the  law 
one  way,  or  that  they  vote  "  license"  the  other  way. 

The  vote  of  the  people  may  be  changed,  but  the  rule  that 
B,  majority  vote  shall  be  essential  remains  unaltered. 

The  legislature  has  pronounced  what  the  law  shall  be,  and 
it  cannot  be  and  is  not  abrogated,  changed  or  altered  by  the 
{)opular  expression. 

The  leading  cases  of  Rice  v.  Foster,  and  Parker  v.  Com- 
monwealth, are  distinguishable  in  principle  from  this. 

In  those  cases,  the  prohibition  and  penalty  were  not  de- 
nounced by  the  law  itself,  but  by  the  popular  vote.  The 
selling  of  liquor  was  not  pronounced  to  be  unlawful;  it  was 
referred  to  the  people  to  determine  whether  it  should  be 
restrained. 

S  >  in  the  law  proposed  to  be  passed  at  the  last  session  of 
our  legislature ;  "  the  offence  defined  by  the  act  could  not  be 
committed  unless  the  voters  of  the  town  determined  that 
licenses  should  not  be  granted." 

But  if  this  is  construed  as  an  act  authorizing  the  township 


76  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Sandford,  v.  Court  of  Common  Pleas  of  Morris. 

by  a  majority  vote  to  prohibit  tlie  retail  traffic  in  liquors,  it 
may  still  be  supported. 

The  right  of  the  legislature  to  grant  the  power  of  local 
government  to  municipalities  is  conceded,  and  it  is  immaterial 
whether  the  enactment  conferring  it  is  regarded  as  a  declara- 
tion of  the  supreme  legislative  will  and  strictly  a  law,  or 
merely  as  a  concession  of  a  grant  by  the  legislature,  as  the 
representative  of  the  sovereignty  of  the  people. 

Such  legislation  has  become  so  woven  into  our  system  of 
government,  and  its  exercise  as  an  appropriate  function  of  the 
law-giver  has  passed  so  long  unchallenged,  and  has  been  so 
repeatedly  recognized  by  the  courts,  that  it  cannot  be  permitted 
now  to  be  called  in  question. 

Under  the  authority  to  establish  police  regulations,  mu- 
nicipal corporations  may  be  invested  with  power  to  make 
ordinances  to  promote  the  health  or  contribute  to  the  safety 
of  the  community. 

Noxious  trades  may  be  restrained,  the  storage  of  highly 
inflammable  or  dangerous  materials  may  be  prohibited,  dis- 
orderly houses  may  be  suppressed,  and  sports,  exhibitions  and 
public  performances  regulated,  restrained  or  prohibited. 

It  would  not  be  pretended  that  authority  could  be  dele- 
gated to  the  corporate  body  to  pronounce  how  real  estate 
should  descend,  or  personal  property  be  distributed  within 
the  city  limits. 

In  almost  every  city  charter,  the  right  to  regulate  or 
restrain  the  sale  of  intoxicating  liquors  is  expressly  conferred, 
and  it  could  be  done  only  upon  the  theory  that  it  is  a  police 
regulation,  and  not  strictly  an  exercise  of  the  law-making 
power. 

This  species  of  property  is  clearly  within  the  same  rule, 
which  permits  the  corporate  body  under  legislative  sanction 
to  determine  for  itself  whether  gunpowder  or  uitro  glycerine 
may  be  manufactured  or  stored  within  its  limits. 

While  alcoholic  stimulants  are  recognized  as  property  and 
are  entitled  to  the  protection  of  the  law,  ownership  in  them 
is  subject  to  such  restraints  as  are  demanded  by  the  highest 


NOVEMBER  TERM,  1872.  77 

State,  ex  rel.  Sandford,  v.  Court  of  Common  Pleas  of  Morris. 

considerations  of  public  expediency.  Such  enactments  are 
regarded  as  police  regulations,  established  for  the  prevention 
of  pauperism  and  crime,  for  the  abatement  of  nuisances,  and 
the  promotion  of  public  health  and  safety.  They  are  a  just 
restraint  of  an  injurious  use  of  property,  which  the  legislature 
has  authority  to  impose,  and  the  extent  to  which  such  inter- 
ference may  be  carried  must  rest  exclusively  in  legislative 
wisdom  where  it  is  not  controlled  by  fundamental  law. 

It  is  a  settled  principle,  essential  to  the  riglit  of  self-preser- 
vation in  every  organized  community,  that  however  absolute 
may  be  the  owner's  title  to  his  property,  lie  holds  it  under 
the  implied  condition  "that  its  use  shall  not  work  injury  to 
the  equal  enjoyment  and  safety  of  others,  who  have  an  equal 
right  to  the  enjoyment  of  their  property,  nor  be  injurious  to 
the  community." 

Rights  of  property  are  subject  to  such  limitations  as  are 
demanded  by  the  common  welfare  of  society,  and  it  is  within 
the  range  and  scope  of  legislative  action  to  declare  what 
general  regulations  shall  be  deemed  expedient. 

If  therefore  the  legislature  shall  consider  the  retail  of  ardeufe 
spirits  injurious  to  citizens,  or  productive  of  idleness  and  vice, 
it  may  provide  for  its  total  suppression.  Such  inhibition  is 
justified  only  as  a  police  regulation,  and  its  legality  has  beea 
recognized  in  well  considered  cases. 

It  is  neither  in  conflict  with  the  power  of  congress  over 
subjects  within  its  exclusive  jurisdiction,  nor  with  any  provi- 
sions of  our  state  constitution,  nor  with  general  fundamental 
principles.  Cooley  on  Cons.  Limitations,  p.  583,  and  cases 
there  referred  to;   Thurlow  v.  Massachusetts,  5  How.  504. 

It  is  not  necessary  to  amplify  discussion  on  this  point,  or 
to  criticise  the  cases  in  detail.  The  view  here  taken  underlies 
the  whole  subject  of  police  regulations,  and  cannot  logically 
be  narrowed  in  its  application. 

An  examination  of  the  cases  will  show  that  some  laws  of 
this  character  have  failed  to  receive  the  approval  of  the  courts, 
because  they   invaded  the  right  of  the   citizen  to  be  secure 

Vol.  VII.  5 


78  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Sandford,  v.  Court  of  Common  Pleas  of  Morris. 

against  unreasonable  searches,  or  denied  to  him  a  fair  trial 
before  condemnation  of  his  property. 

It  necessarily  results  tliat  municipal  corporations  may 
derive  the  power  to  interdict  the  sale  of  intoxicating  drinks 
from  the  same  source  to  which  they  owe  tlieir  authority  to 
regulate  it.  The  grant  of  power  to  prohibit  the  sale  is  no 
more  the  delegation  of  a  right  to  make  law  than  the  grant  of 
authority  to  regulate  it. 

Assuming  this  proposition,  how  may  such  authority  be 
exercised  by  the  corporate  body  ? 

Obviously,  the  only  limitation  must  be  contained  in  the 
terms  of  the  grant  itself,  in  the  absence  of  any  constitutional 
restraint.  It  is  wholly  immaterial  how  the  power  is  exercised 
jso  long  as  it  is  in  the  mode  appointed  by  the  superior.  In 
•establishing  the  local  government,  the  power  may,  at  the  dis- 
■cretion  of  the  legislature,  be  lodged  in  the  people  to  make 
rules  for  the  regulation  of  their  internal  police  by  their  direct 
vote  in  mass  meeting  assembled,  or  through  designated  officials 
by  themselves  duly  elected.  It  would  therefore  be  within 
'the  province  of  the  legislature  to  confer  upon  a  city  the  right, 
by  a  majority  vote  of  its  inhabitants,  to  pass  ordinances  for 
:the  regulation  or  suppression  of  the  retail  trade  in  ardent 
ispirits. 

This  leads  to  the  question  whether  Chatham  township  was 
in  a  position  to  receive  such  a  measure  of  the  power  of  local 
government? 

The  inhabitants  of  the  several  townships  in  this  state  are 
incorporated  by  a  general  law.  They  have  heretofore  without 
question  exercised  many  powers  through  a  direct  vote  of  the 
people.  They  determine  how  the  poor  shall  be  kept,  how 
much  money  shall  be  raised  for  roads,  and  how  much,  if  any, 
for  school  purposes,  and  I  know  of  no  reason  why  they  may 
not  be  vested  with  the  same  powers  which  are  or  could  be 
granted  to  municipal  corporations,  including  the  one  which 
has  given  rise  to  this  contest. 

Whether  these  laws  are  wisely  framed  to  subserve  theii 
purpose  is  not  to  be  determined  by  the  court,  but  must  be 


NOVEMBER  TERM,  1872.  79 

State,  Montgomery  et  al.,  Pros.,  v.  Inhabitants  of  Trenton. 

referred  to  that  branch  of  our  government  which  has  the 
«xchisive  right  to  enact  or  repeal  them. 

Regarding  the  established  rule,  that  only  in  clear  cases  of 
excess  should  the  action  of  the  legislature  be  arrested  by- 
judicial  interference,  I  am  of  opinion  that  the  mandatory  writ 
-should  be  denied. 

Cited  in  State  v.  Wheeler,  15  Vr.  St.. 


THE  STATE,  MONTGOMEEY   ET  AL.,  PEOSECUTORS,  v.  THE 
INHABITANTS  OF  THE  CITY  OF  TEENTON. 

1.  The  common  council  of  the  city  of  Trenton  have  no  authority  under 
the  general  power  to  regulate  streets,  to  grant  to  an  individual  license 
to  lay  a  railroad  track  across  the  public  street  for  his  own  use. 

2.  Streets  and  highways  are  intended  for  the  common  and  equal  benefit 
of  all  citizens,  to  which  end  they  must  be  regulated. 

S.  Certiorari  will  not  lie  in  favor  of  the  prosecutors,  who  have  sustained 
no  damage  peculiar  to  themselves. 


On  certiorari  to  review  and  set  aside  an  ordinance,  &c. 

Argued  at  June  Term,  1872,  before  Justices  Dalrimple, 
Depue  and  Van  Syckel. 

For  the  plaintiffs,  /.  R.  Emery  and  O.  D,  W.  Vroom. 

For  the  defendant,  E.  T.  Green. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel.,  J.  The  common  council  of  the  city  of 
Trenton,  on  the  12th  of  March,  1872,  passed  the  following 
ordinance,  viz. : 

"An  ordinance  to  authorize  Benjamin  Fish  and  George  S. 
Green  to  construct  a  railroad  track  across  West  State  street, 
from  the  canal  to  their  land  at  the  waste  weir. 


80  NEW  JERSEY  SUPREME  COURT. 

State,  Montgomery  et  al.,  Pros.,  v.  Inhabitants  of  Trenton. 

"  The  Inhabitants  of  the  city  of  Trenton  do  ordain  : 
"Section  1.  That  the  consent  of  the  city  of  Trenton  i& 
hereby  granted  to  Benjamin  Fish  and  George  S.  Green  to 
construct  and  operate  a  railroad  track  for  the  passage  of  logs 
and  other  lumber  across  West  State  street,  from  the  feeder  of 
the  Delaware  and  Raritan  Canal  to  the  land  of  Fish  and 
Green,  on  the  southerly  side  of  said  street,  adjacent  to  the 
waste  weir;  provided,  that  the  said  track  shall  be  constructed 
upon  the  present  grade  of  West  State  street,  and  that  the 
laying  and  construction  of  said  railroad  track  shall  be  subject 
to  the  supervision  and  approval  of  the  street  commissioner  of 
the  city  of  Trenton,  and  tiiat  said  railroad  shall  be  so  operated 
and  maintained  as  not  to  interfere  with  the  travel  on  said 
street ;  and  provided  further,  that  nothing  herein  contained 
shall  permit  the  said  Fish  and  Green  to  construct  and  operate 
said  railroad  without  the  consent  first  had*  and  obtained  of 
the  lot  owners  fronting  on  that  part  of  said  street  on  which 
the  said  railroad  track  is  to  be  constructed  and  maintauied ;, 
and  provided  further,  that  whenever  the  common  council  may 
consider  the  said  railroad  incompatible  with  the  public  inter- 
ests, they  may  order  the  same  to  be  removed. 

"Section  2.  That  this  ordinance  shall  go  into  effect  so  soon 
as  the  said  Fish  and  Green  shall  have,  at  their  own  cost  and 
charges,  caused  the  same  to  be  published  five  consecutive 
times  in  two  of  the  daily  newspapers  in  this  city. 

"  R.  C.  Belville,  President^ 

The  lot  of  Fish  and  Green,  with  which  the  connection  is 
proposed  to  be  made,  as  the  case  shows,  runs  only  to  the 
westerly  line  and  not  to  the  middle  of  the  street. 

The  prosecutors,  who  are  land  owners  and  residents  on 
West  State  street,  deny  the  power  of  the  common  council  to 
pass  said  ordinance. 

The  grant  is  to  construct  and  operate  a  railroad  for  the 
private  uses  of  Fish  and  Green,  upon  and  across  a  public 
street,  without  restriction  as  to  the  motive  power  to  be  used. 


NOVEMBER  TERM,  1872.  81 

State,  Montgomery  et  al.,  Pros.,  v.  Inhabitants  of  Trenton. 

the  sole  limitation  being   that   it   shall    be  so  operated  and 
maintained  as  not  to  interfere  with  travel. 

Under  a  strict  interpretation  of  this  condition  the  road 
could  not  be  built,  for  the  track  would  be  an  appreciable 
obstruction,  but  in  order  that  the  grant  may  be  effective,  a 
reasonable  construction  of  the  ordinance  will  be  that  the 
work  must  be  so  done  and  maintained  that  no  unnecessary 
interference  with  the  public  use  of  the  street  ensues. 

The  common  council  of  the  city  of  Trenton  has  no  power 
•over  streets  other  than  that  conferred  by  the  city  charter, 
and  therefore  unless  authority  can  be  found  in  the  corporation 
act  for  granting  the  privilege  in  question,  the  ordinance  must 
fall. 

The  defendants  rely  upon  title  III,  §  25,  subdivision  7  of 
the  city  charter,  [Laws,  1866,  p.  373,)  which  provides  "  that 
the  common  council  shall  have  power  to  regulate,  clean  and 
keep  in  repair  streets,  highways,  &c.,  in  said  city,  and  to 
prevent  and  remove  obstructions,  &c.,  and  to  prescribe  the 
manner  in  which  corporations  or  persons  shall  exercise  any 
privilege  granted  to  them  in  the  use  of  any  street,  avenue, 
highway  or  alley  in  said  city,  or  in  digging  up  any  street, 
avenue,  highway  or  alley  for  the  purpose  of  laying  down 
pipes  or  any  other  purpose  whatever." 

The  power  to  prescribe  the  manner  in  which  corporations 
or  persons  shall  exercise  any  privilege  granted  to  them  in  the 
•use  of  any  street,  if  held  to  apply  to  privileges  given  by 
legislative  enactment,  cannot  affect  this  controversy,  and  if  to 
privileges  granted  by  the  common  council,  it  must  be  inter- 
preted to  mean  such  privileges  as  may  lawfully  be  granted. 

The  prosecutors  claim  that  the  railway,  if  constructed,  will 
be  a  nuisance.  But  no  structure  which  has  the  sanction  of 
lawful  authority  can  be  a  nuisance.  The  result  could  flow 
only  from  doing  an  act  unauthorized  and  illegal.  If  the 
ordinance  ia  question  is  not  in  excess  of  corporate  power,  it  • 
is  a  legitimate  exercise  of  such  functions  as  may  be  delegated 
to  municipal  governments,  and  is  beyond  the  control  of 
judicial  interference. 


82  NE^y  JERSEY  SUPREME  COURT. 

State,  Montgomery  et  al.,  Pros.,  v.  Inhabitants  of  Trenton. 

In  Milhau  V.  Sharpe,  15  Bai'b.  193,  the  corporation  of  New 
York,  without  other  authority  than  that  contained  in  the 
general  power  to  regulate  streets,  conferred  upon  tlie  defendant 
and  liis  associates  power  to  lay  a  railway  in  Broadway. 

This  grant  was  sustained  on  the  ground  that  it  was  in  the 
nature  of  a  public  use  and  conducive  to  the  public  good,  and 
did  not  interfere  with  the  complete  and  unrestricted  use  of  the 
highway. 

In  the  same  case  reported  in  17  Barb.  435,  it  was  declared 
that  the  right  to  make  a  grant  of  that  nature  without  the 
power  of  revocation  was  not  within  the  powers  conferred 
upon  the  common  council ;  that  it  was  not  a  legislative  act 
regulating  the  use  of  the  street,  but  a  grant  of  the  use  itself 
to  the  extent  specified,  whereby  they  divested  themselves  of 
absolute  control  over  the  street,  and  became  disabled  to  dis- 
charge the  important  public  trust  reposed  in  them.  Thereafter 
instead  of  regulating  the  highway  in  the  full  and  complete 
manner  designed  by  their  charter,  they  would  exercise  their 
control  in  subordination  to  the  franchise  they  themselves  had 
granted.  They  would  thus  manifestly,  to  the  extent  of  the 
grant,  give  up  the  use  of  the  public  way,  and  surrender  a 
portion  of  their  municipal  authority. 

In  the  later  case  of  Davis  v.  The  Mayor  of  New  York,  in 
the  Court  of  Appeals,  reported  in  14  N.  Y.  506,  the  court 
ruled  (Denio,  C.  J.,  delivering  the  opinion,)  that  it  was  not 
competent  for  the  corporation  of  New  York  city  to  authorize 
the  laying  of  a  railroad  track  in  the  streets,  on  the  ground 
that  it  was  not  properly  within  the  idea  of  regulating  higii- 
ways,  but  was  converting  them  into  a  means  of  transportation 
with  which  the  existence  of  a  street  had  no  natural  or  neces- 
sary connection  within  the  purview  of  the  city  charter.  In 
most  of  the  cases  on  this  subject  there  has  been  a  legislative 
grant,  coupled  with  the  municipal  authority.  2Iurphy  v. 
Chicago,  29  ///.  279;  Lexington  and  Ohio  R.  R.  v.  Apple- 
gate,  8  Dana  289  ;  Chapman  v.  Albany  and  Seh.  R  R.,  10 
Barb.  360;  Adams  v.  Saratoga  R.  R.,  11  Barb.  414; 
Williams  v.  N.  Y.  Central  R.  R.,  18  Barb.  222. 


NOVEMBER  TERM,  1872.  83 

State,  Montgomery  et  al.,  Pros.,  v.  Inhabitants  of  Trenton. 

In  all  the  cases  in  which  the  grant  of  power  is  recognized^ 
it  is  rested  upon  the  same  principle  on  which,  in  this  state,  we 
have  declared  that  a  horse  railway  was  a  legitimate  use  of  a 
liighway  ;  that  is,  that  it  is  merely  a  new  mode  of  using  the 
highway,  and  that  it  does  not  burden  it  with  a  new  servitude 
inconsistent  with  the  purposes  for  which  it  was  origimilly 
appropriated  to  the  public.  It  is  true  that  in  these  cases  the 
right  of  the  adjacent  land  owners  to  compensation  was  an 
element  which  does  not  enter  into  the  case  certified  here,  but 
independent  of  that  consideration,  the  municipal  power  under 
the  warrant  to  regulate  streets,  was  restricted  to  such  uses  as 
are  public,  or  in  the  nature  of  public  uses. 

Keeping  in  view  the  rule  which  governs  these  cases,  it  will 
not  be  necessary  to  consider  whether,  in  this  state,  a  munici- 
pal corporatiou  may,  under  the  power  to  regulate  streets, 
grant  authority,  without  the  concurrence  of  express  legislation, 
to  lay  and  maintain  a  horse  railway  in  the  ])ublic  streets.  If 
it  may,  it  can  be  only  for  the  reason  that  such  use  is  not 
incompatible  with  the  purposes  for  which  the  highway  was 
devoted  to  the  public,  and  that  it  will  promote  the  common 
convenience,  and  is  therefore  an  appropriate  regulation  of  the 
street.     I  do  not  concede  the  existence  of  this  power. 

It  has  never,  so  far  as  I  can  ascertain,  been  exercised  in 
this  state,  and  the  attempt  to  assert  it  would  doubtless  pro- 
voke the  most  determined  resistance. 

Every  thing  which  is  fairly  within  the  idea  of  regulating 
streets,  with  a  view  to  their  use  as  streets,  may  be  done  by 
corporation  legislation.  In  measuring  the  extent  of  the 
power,  the  object  and  purpose  for  which  it  was  given  must 
always  be  regarded  as  the  test. 

Is  one  of  those  objects  or  purposes  subserved  by  permit- 
ting one  individual  to  enjoy  a  use  of  the  highway  whicii  is 
denied  to  all  others?  I  think  not.  If  such  power  is  con- 
ceded, its  exercise  is  limited  only  by  the  discretion  of  the 
common  council,  who  must  be  the  sole  judges  of  the  extent 
to  which  obstructions  may  be  placed  in  the  streets.  If  they 
can  license  one  to  build  a  railroad  across  the  highway  for  his 


84  NEW  JERSEY  SUPREME  COURT. 

State,  Montgomery  et  al.,  Pros.,  v.  Inhabitants  of  Trenton. 

own  exclusive  benefit,  of  which  the  public  can  have  no  user 
or  advantage  of  convenience,  it  is  difficult  to  perceive  why 
they  cannot  empower  another  to  place  therein  a  structure 
which  will  more  effectually  impede  the  public  passage,  and 
maintain  it  there  during  their  pleasure. 

How  considerable  must  the  obstruction  to  the  way  become, 
before  the  judgment  of  the  common  council  can  be  contro- 
verted, and  the  judicial  arm  interposed? 

A  grant  to  every  one  on  the  street,  of  a  like  nature  with 
that  now  resisted,  would  render  the  highway  well  nigh 
impassable.  The  right  to  license  one  necessarily  implies 
authority  to  license  all,  and  thus  municipal  corporations, 
under  the  general  power  to  regulate  streets,  become  the  source 
from  which  franchises  to  favored  individuals,  in  the  public 
ways,  derive  their  existence. 

Streets  and  highways  are  intended  for  the  connnon  and 
equal  use  of  all  citizens,  to  which  end  they  must  be  regulated. 
An  appropriation  of  them  to  private  individual  uses,  from 
which  the  public  derive  no  convenience,  benefit  or  accommo- 
dation, is  not  a  regulation,  but  a  perversion  of  them  from 
their  lawful  purposes,  and  cannot  be  regarded  as  an  execution 
of  the  trust  imposed  in  the  city  authorities. 

In  Wilson  v.  Cunningham  et  aL,  3  Cat.  241,  the  defendants, 
while  running  their  cars  for  their  own  private  gain  over  a  rail- 
road laid  down  in  the  streets  of  San  Francisco,  under  license 
from  the  common  council,  collided  with  the  plaintiff's  wagon. 
The  plaintiff  sued  for  his  damages.  Although  no  question 
was  raised  by  the  pleadings,  as  to  the  right  of  the  defendants 
to  run  their  cars,  the  court  below  refused  to  charge  the  jury, 
**that  if  the  defendants  were  running  their  cars  with  ordi- 
nary care,  as  they  had  a  right  to  do,  under  the  permission 
given  them,  they  could  not  be  held  liable  in  that  action." 
The  Supreme  Court  affirmed  the  judgment,  which  was  for 
the  plaintiff  below,  on  the  ground  that  by  the  special  license 
to  a  private  person,  for  his  own  benefit,  the  street  was 
diverted  from  its  ordinary  and  legitimate  use,  and  therefore 


NOVEMBER  TERM,  1872.  85 

State,  Montgomery  et  al.,  Pros.,  v.  Inhabitants  of  Trenton. 

the  defendant,  in  operating  his  road,  must  be  required  to  use 
extraordinary  care. 

The  power  of  the  common  council,  to  permit  owners  of 
stores  or  other  buildings  to  erect  awnings  over  streets,  or  to 
leave  boxes  on  the  sidewalks,  under  certain  regulations,  rests 
upon  a  different  |)rinciple,  and  has  been  sanctioned  by  usage 
as  the  exercise  of  a  right  in  the  owner  of  the  fee,  not  incon- 
sistent with  the  public  right  of  passage. 

So  custom  has  sanctioned  the  laying  of  gas  and  water 
pipes,  as  entirely  accordant  with  the  primary  use  of  the  high- 
way, but  even  this  is  done  under  legislative  authority. 

In  my  opinion  the  ordinance  certified  is  unauthorized  and 
void,  and  any  railway  constructed  under  it  would  be  a  public 
nuisance. 

But  this  result  does  not  give  the  prosecutors  the  right  to 
invoke  the  aid  of  this  court,  by  the  writ  of  certiorari,  to  set 
aside  the  illegal  proceeding.  Even  after  the  projected  work 
was  completed,  they  could  not  maintain  an  action  for  the 
damages  they  might  sustain  in  common  with  other  citizens; 
they  could  have  a  private  remedy  only  for  such  injury  as  was 
peculiar  to  themselves. 

The  mere  fact  that  the  common  council  have  acted  in 
excess  of  their  power,  affects  the  relators  in  common  with 
other  citizens,  but  in  no  way  peculiar  to  themselves.  No 
right  of  action  can  accrue  to  any  one  of  the  prosecutors,  until 
he  sustains  some  special  injury.  The  rule  of  the  English 
courts,  that  for  the  usur[)ation  of  authority  by  public  bodies, 
the  remedy,  until  the  passage  of  their  municipal  corporation 
acts,  was  exclusively  in  the  name  of  the  attorney-general 
acting  in  behalf  of  the  public,  and  that  the  individual  had 
no  redress  until  his  person  or  property  was  affected  by 
enforcement  of  the  illegal  proceeding,  has  been  so  far  modi- 
fied by  judicial  decision  in  this  state,  that  the  tax  payer  may 
resort  to  certiorari  for  his  protection  against  an  illegal  ordi- 
nance or  resolution,  without  waiting  until  the  assessment  is 
actually  imposed.  State  v.  Jersey  City,  5  Vroom  390;  State 
V.  Paterson,  5  lb.  163. 


86  NEW  JERSEY  SUPREME  COURT. 

State,  Weehawken  Tw'p,  Pros.,  v.   Roe,  Clerk  Hudson  Co.  Freeholders.- 

In  these  two  eases  the  prosecutor  would  have  been  directly 
affected  in  his  property  by  the  enforcement  of  the  illegal  pro- 
ceeding. In  the  later  case  of  The  State,  Kean,  Pros.,  v. 
Bronson,  6  Vroom  468,  it  was  held  that  the  relator,  by  reason 
of  his  being  a  property  owner  and  tax  payer  within  the  cor- 
poration, had  no  legal  right  to  question  the  proceedings  of 
commissioners,  in  putting  in  sewers  and  paving  streets,  unless 
he  could  be  called  on  to  contribute  to  the  expenses  of  the 
improvement. 

Accepting,  as  I  feel  constrained  to  do,  the  limitation  of  the 
rule  as  adopted  in  this  last  case,  I  am  of  the  opinion  that  the 
writ  now  pending  must  be  dismissed  with  costs. 

Cited  in  Ferry  v.  Williams,  12  Vr.  332 ;  Gloucester  Land  Co.  v.  Mayor, 
&c.,  14  Vr.  544;  Slaates  v.  Borough  of  Washington,  15  Vr.  605;  Jersey  City 
Gas  Co.  V.  Dwight,  2  Stew.  Eq.  242. 


THE  STATE,  THE  TOWNSHIP  OF  WEEHAWKEN,  PROSE- 
CUTOR, V.  CHARLES  J.  ROE,  CLERK  OF  THE  BOARD  OF 
CHOSEN  FREEHOLDERS  OF  THE  COUNTY  OF  HUDSON. 

1.  When  the  board  of  assessors  meet  under  pi.  95  of  the  tax  act,  {Nix. 
Dig.  953,)  the  township  to  whose  quota  of  tax  an  addition  is  proposed 
to  be  made,  cannot  offer  evidence  to  rebut  any  alleged  inequality. 
The  assessors  must  determine  upon  their  own  knowledge  the  existence 
of  any  inequalily. 

2.  Before  they  can  interfere  at  all  with  any  duplicate,  they  must  decide 
that  the  valuation  contained  in  it  is  relatively  less  than  the  value  of 
other  property  in  the  county,  and  then  they  correct  it  as  to  themselves 
shall  seem  just  and  proper. 

On  certiorari. 

Argued  at  June  Term,  1872,  before  Justices  Daleimple, 
Depue  and  Van  Syckel. 

For  the  plaintiffs,  F.  W.  Scudder  and  J.  Vanaita. 

For  the  defendant,  Jacob  Weart. 


NOVEMBER  TERM,  1872.  87 

State,  Weehawken  T'w'p,  Pros.,  v.  Koe,  Clerk  Hudson  Co.  Freeholders. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  The  board  of  assessors  of  the  county 
of  Hudson,  at  their  meeting  in  1871,  passed  a  resolution  that 
the  valuation  of  property  made  by  the  assessor  of  Weehawken. 
township  be  raised  two  hundred  per  cent.  The  certiorari  in 
this  case  is  prosecuted  to  test  the  validity  of  this  resolution. 

The  case  shows  that  the  assessors  of  the  several  townships 
having  met  in  pursuance  of  the  statute,  produced  their  respec- 
tive duplicates,  verified  by  oath  as  prescribed  by  section  12  of 
the  act  concerning  taxes,  passed  April  14th,  1846.  {Nix.  Dig. 
953,  ^l.  94.)* 

The  assessor  of  Weehawken  testifies,  and  his  statements 
are  not  called  in  question  by  any  counter  testimony,  that  he 
presented  his  duplicate  to  the  board,  and  his  affidavit  thereto 
was  inspected  and  pronounced  to  be  correct;  that  after  the 
valuations  for  the  several  townships  had  been  taken  down  by 
the  clerks,  one  of  the  assessors  moved  that  the  valuation  of 
the  township  of  Weehawken  be  increased  two  hundred  and 
fifty  per  cent. ;  some  other  person  moved  to  increase  it  three 
hundred  per  cent.,  which  was  carried,  but  afterwards  recon- 
sidered and  the  increase  fixed  at  two  hundred  per  cent. ;  that 
there  was  no  discussion  in  the  board  of  assessors  as  to  the 
propriety  or  impropriety  of  the  increase ;  that  the  assessor  of 
Weehawken  stated  his  objections  to  such  increase,  but  that 
there  was  no  discussion  in  regard  to  the  matter,  no  comparison 
of  valuations  made  publicly  in  the  board,  and  no  reasoa 
whatever  was  assigned  by  any  one  for  making  the  increase. 

The  power  under  which  this  action  is  sought  to  be  upheld 
is  found  in  the  act  before  referred  to,  [Nix.  Dig.  953,  pi.  95,)t 
which  provides  "  that  the  board  of  assessors,  when  met  as 
aforesaid,  shall  compute  and  ascertain  the  whole  value  of  real 
and  personal  estate  after  deduction  of  debts,  to  be  taxed 
according  to  the  value  thereof  contained  in  the  duplicates  of 
the  several  assessors,  or  estimated  as  aforesaid,  and  shall  fix 
and  adjust  the  proportion  or  quota  of  tax  to  be  levied  and 
collected  in  each  township  or  ward  in  proportion  to  said 
value;  provided,  that  if  it  shall  appear  to  the  a.ssessors  so  met 

*  Rev.,  p.  1155,  ?  71.     f  -^ei'.,  p.  1155,  g  72. 


«8  NEW  JERSEY  SUPREME  COURT. 

State,  Weehawken  "Fw'p,  Pros.,  v.  Eoe,  Clerk  Hudson  Co.  Freeholders. 

as  aforesaid,  that  the  value  of  the  property  contained  in  any 
duplicate  is  relatively  less  than  the  value  of  other  property 
in  the  county,  they  may,  for  the  purpose  of  fixing  and  adjust- 
ing the  said  proportion  or  quota,  and  for  that  purpose  only, 
add  thereto  such  percentage  as  shall  appear  to  them  just  and 
proper,  hut  not  otherwise." 

The  object  of  this  section  is  to  prevent  inequality  in  the 
distribution  among  the  several  townships  of  the  tax  appor- 
tioned to  the  several  counties. 

It  is  insisted  on  the  part  of  the  relators  that  the  board  of 
assessors  must  base  their  action  upon  competent  evidence,  an<l 
that  the  township  of  Weehawken  had  a  right  to  be  heard  by 
witnesses  in  defence  of  the  proposed  addition  in  burden  of 
ilieir  tax  payers.  The  statute  will  not  bear  this  construction. 
No  mode  is  provided  for  conducting  such  a  proceeding,  and 
it  is  manifest  that  such  a  trial,  if  entered  upon,  would  be 
practically  without  an  end.  It  would  involve  the  taking  of 
evidence  and  counter  evidence  as  to  the  value  of  every  piece 
of  property  in  the  county,  besides  the  abatement  to  which 
every  individual  would  be  entitled  for  debts  and  non-taxables. 
It  would  require  clear  language  to  lead  to  the  conclusion  that 
the  legislature  intended  to  impose  upon  the  board  of  assessors 
an  inquiry  so  extended  as  this,  because  if  it  is  competent  to 
•enter  upon  it  at  all  by  the  production  of  witnesses,  nothing 
but  the  will  of  the  contending  parties  could  arrest  the  j)ursuit 
of  it  to  its  minutest  details.  In  fact,  if  it  must  be  determined 
by  competent  evidence,  nothing  could  be  settled  without 
sufficient  testimony  to  support  it,  and  that  would  inevitably 
lead  to  an  examination  in  detail  of  all  the  values  in  the 
county.  This  would  be  an  impracticable  and  unreasonable 
interpretation  of  the  clause  in  question. 

Our  law-makers  have  presumed  that  assessors  in  the  dis- 
charge of  their  functions  will  become  acquainted  with  the 
values  in  their  county,  and  by  an  interchange  of  views,  be 
able  to  ascertain  approximately,  not  accurately,  the  relative 
valuations,  so  that  no  apparent  injustice  will  be  done  to  any 
one  township.  This  is  all  that  was  intended  to  be  secured 
by  the  provision  in  question.     If  it  shall  appear  to  the  board 


NOVEMBER  TERM,  1872.  8& 

State,  Banghart  et  al.,  Pros.,  v.  Sullivan,  Collector  of  Lebanon. 

from  the  knowledge  wliicli  each  one  possesses,  aided  by  that 
derived  from  his  associates,  that  there  is  inequality,  that 
inequality  may  be  removed,  according  to  their  own  best 
judgment,  and  nothing  more.  Before  they  can  act  at  all, 
upon  any  duplicate,  they  must  decide  that  the  valuation  con- 
tained in  it  is  relatively  less  than  the  value  of  other  property 
in  the  county,  and  then  they  correct  it  as  to  themselves  shall 
seem  just  and  proper.  The  act  was  designed  to  enable  the 
board  of  assessors  to  remove,  not  arbitrarily  to  establish  ine- 
quality, by  permitting  them  to  act  in  the  premises  without  first 
having  the  sanction  of  their  own  judgment  as  a  board,  that  a 
state  of  facts  existed  which  authorized  them  to  interfere  at  all. 

The  power  conferred  is  a  very  broad  one,  and  even  with  this 
slight  safeguard  thrown  around  its  exercise,  it  is  susceptible 
of  very  great  abuse.  If  it  shall,  in  its  application,  become 
oppressive,  the  only  remedy  is  by  appeal  to  legislation. 

In  the  case  now  submitted,  it  does  not  apj)ear  that  there  was 
any  comparison  of  views  between  the  assessors,  or  any  judg- 
ment formed  by  them  that  the  valuation  in  Weehawken  was 
relatively  less  than  it  should  have  been.  So  far  as  appears, 
the  action  complained  of  was  arbitrary  and  oppressive,  and  not 
as  appeared  to  them  just  and  proper,  and  therefore,  in  my 
opinion,  their  resolution  should  be  set  aside. 

Cited  in  State,  Inhabitants,  &c.,  pros.,  v.  Anderson,  9  Vr.  173. 


THE  STATE,  DAVID  H.  BANGHAKT  ET  AL.,  PEOSECUTOES, 
V.  DENNIS  SULLIVAN,  COLLECTOE  OF  TAXES  OF  LEB- 
ANON TOWNSHIP,  IN  THE  COUNTY  OF  HUNTEEDON. 

1.  The  certificate  upon  which  a  school  tax  is  assessed  must  show  how 
the  money  ordered  to  be  raised  is  to  be  apportioned. 

2.  The  material  facts  set  forth  in  the  certificate  must  be  verified  by  the 
oath  of  the  clerk. 


"90  NEW  JERSEY  SUPREME  COURT. 

State,  Banghart  et  al.,  Pros ,  v.  Sullivan,  Collector  of  Lebanon. 
On  certiorari. 

Argued  at  Jane  Term,  1872,  before  Justices  Dalrimple, 
Depue  and  Van  Syckel. 

For  the  plaintiffs,  A.  V.  Van  Fleet. 

For  the  defendant,  G.  A.  Allen. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  The  assessment  removed  into  this  court 
•by  the  relators  purports  to  have  been  made  upon  the  inhabi- 
tants of  Rocky  Run  school  district  No.  11,  in  the  township 
•of  Lebanon,  in  the  county  of  Hunterdon,  in  the  year  1870, 
by  virtue  of  a  certificate  of  the  district  clerk  under  section 
eighty  of  the  school  law.     {Nix.  Dig.  879.)* 

The  adjudicated  cases  have  established  certain  propositions 
which  must  rule  the  controversy. 

First.  That  the  certificate  is  the  only  authenticated  evidence 
that  the  tax  has  been  authorized. 

Second.  That  the  certificate  must  show  on  its  face  that  the 
law  has  in  all  respects  been  complied  with,  so  that  not  only 
the  assessor  may  know  that  his  warrant  emanates  from  the 
proper  source,  but  also  that  the  tax  payer  may  know  that  he 
is  lawfully  assessed. 

Third.  That  the  particular  purpose  for  which  the  money  is 
raised  must  be  specified  in  the  certificate.  State  v.  Hardcadle, 
2  Butcher  143;  S.  C,  3  lb.  551;  State  v.  Garrabrant,  3 
Vroom  444 ;  State  v.  Greenleaf,  5  lb.  442. 

The  certificate  in  question  declares  that  by  the  neccssiiry 
two-thirds  vote  the  trustees  were  authorized  to  procure  land 
in  said  district  and  erect  thereon  a  new  school-house,  and  to 
raise  for  such  purpose  the  sum  of  ^400  by  taxation. 

This  certificate  is  defective  in  failing  to  show  how  much 
was  to  be  appropriated  to  the  purchase  of  land,  and  how 
much  to  the  erection  of  the  building.  The  power  of  appor- 
tionment was  in  the  voters  alone. 

*  Rev.,  p.  1085,  ^  SI. 


NOVEMBER  TERM,  1872.  91 

State,  Banghart  et  al.,  Pros.,  v.  Sullivan,  Collector  of  Lebanon. 

The  sum  voted  being  small,  it  is  manifest  that  the  design 
was  that  but  a  small  portion,  if  any  of  it,  should  be  devoted 
to  the  purchase  of  land,  but  in  the  absence  of  any  expression 
of  the  will  of  the  district  on  that  subject,  the  greater  part  of 
it  might  be  applied  to  the  purchase  of  land,  and  thus  the 
tax  payers  defeated  in  their  purpose  to  have  a  school-house 
erected.  It  is  the  right  of  the  tax  payer  to  have  the  specific 
object  for  which  he  is  to  be  burdened  expressly  declared,  so 
that  when  the  money  is  raised  there  can  be  no  contention  as  to 
the  direction  in  which  it  must  go. 

It  is  insisted  also,  that  the  certificate  is  defective,  because  it 
does  not  contain  a  description  of  the  territorial  boundaries  of 
,  the  district. 

The  inhabitants  of  the  district  have  no  power  at  their 
meeting,  either  to  change  or  establish  such  limits,  and  there- 
fore their  certificate  with  regard  to  it,  would  be  of  no  value. 
The  assessor,  in  making  the  imposition,  must  ascertain  the 
limits  within  which  it  is  to  be  laid,  in  the  same  way  that  he 
acquires  other  facts  necessary  to  be  known  in  the  discharge  of 
his  duties. 

A  third  reason  assigned  for  reversal  is,  that  the  certificate 
is  not  properly  verified  by  the  affidavit  of  the  district  clerk. 

Section  80  of  the  school  law  provides,  that  in  case  any 
money  shall  be  ordered  by  a  vote  of  two- thirds  of  said  meet- 
ing to  be  raised  by  taxation,  the  district  clerk  shall  make  out 
and  sign  a  certificate  thereof,  under  oath  or  affirmation,  that 
the  same  is  correct  and  true.  The  material  facts  set  forth  in 
the  certificate  must  be  verified  by  the  oath  of  tiie  clerk.  The 
only  fact  attested  in  this  affidavit,  is  that  the  statement  of  the 
amount  of  tax  voted  to  be  raised  for  the  purpose  therein  stated, 
is  correct  and  true.    This  is  not  a  compliance  with  the  statute. 

Being  of  opinion,  that  for  the  reasons  stated,  the  assessment 
must  fall,  it  is  not  necessary  to  consider  other  grounds  relied 
upon  by  the  prosecutors. 

Cited  in  State,  Lamb,  pros.,  v.  ITurff,  9  Vr.  310;  State,  Slack,  pros.,  v. 
Palmer,  10  Vr.  250  ;  State,  Corrigan,  pros.,  v.  Daryea,  11  Vr.  266 ;  Trustees 
\.  Fadden,  15  Vr.  151. 


92  NEW  JERSEY  SUPREME  COURT. 


Armour  v.  McMichael. 


PAUL  J.  AEMOUR  v.  RICHARD  McMICHAEL. 

1.  A  person  who  takes  a  note  before  its  maturity  in  payment  of  or  as 
security  for  a  precedent  debt,  is  a  bona  fide  holder  of  it  for  value,  and 
entitled  to  protection  as  such. 

2.  Since  the  supplement  of  February  loth,  1871,  a  note  without  the 
words  "  without  defalcation  or  discount,"  is  as  secure  against  defences 
in  the  hands  of  a  botia  fide  holder  before  maturity,  as  a  note  with 
those  words  would  have  been  before  that  time. 


In  case.     On  riiotion  to  confirm  report  of  referee. 

Argued  at  June  Term,  1872,  before  Justices  Dalrimple, 
Depue  and  Van  Syckel. 

For  the  plaintiff,  Wm.  Brinkerhof. 

For  the  defendant,  Jos.  F.  Randolph. 

The  opinion  of  the  court  was  delivered  by 
Van  Syckel,  J.     This  action  is  on  a  promissory  note,  of 
which  the  following  is  a  copy  : 

$2500.  New  York,  June  15,  1871. 

Ninety  days  after  date  I  promise  to  pay  to  the  order  of 
John  G.  Armour,  twenty-five  hundred  dollars,  payable  at  the 
Mechanics'  and  Traders'  Bank,  value  received,  (with  current 
rate  of  exchange  on  New  York.) 

R.  McMichael. 

Endorsed — John  G.  Armour. 

The  case  was  referred  to  a  referee,  who  has  reported  in 
favor  of  the  plaintiff  the  full  amount  of  the  principal  and 
interest  of  the  note. 

The  defendant  resists  the  application  to  have  this  report 
confirmed  and  judgment  ordered  thereon. 

By  the  evidence  on  the  part  of  the  plaintiff,  it  appears 
that  the  payee  endorsed  the  note  to  him  on  the  day  next  after 
it  was  given,  and  that  he  held  it  until  the  20th  day  of  the 


NOVEMBER  TERM,  1872.  93 

Armour  v.  McMichael. 

following  July,  at  which  date  he  discounted  it  and  gave  to 
the  payee  credit  for  the  proceeds  upon  an  account  he  then 
had  against  hira. 

The  defendant's  counsel  offered  to  prove  in  defence  before 
the  referee,  that  there  were  equities  between  the  original 
parties  to  the  note,  and  that  the  payee  of  the  note  really 
owed  the  defendant. 

No  offer  was  made  to  contradict  the  evidence  on  the  part 
of  the  plaintiff  that  he  discounted  the  note  without  any 
knowledge  of  existing  equities  between  the  defendant  and 
payee,  but  it  was  insisted  that  the  plaintiff  took  it  without 
consideration,  inasmuch  as  he  received  it  June  16th,  1871, 
and  did  not  pass  proceeds  to  the  payee's  credit  until  July 
20th,  following. 

The  question  is,  whether  the  defence  was  admissible. 
It  cannot  affect  the  standing  of  the  plaintiff  as  a  bona  fide 
holder  for  value  that  he  had  the  note  in  his  possession  by 
endorsement  for  about  one  month  before  he  actually  dis- 
counted it,  and  gave  the  endorser  credit  for  the  avails  of  it. 
There  was  no  offer  to  contradict  the  statements  on  behalf  of 
the  plaintiff,  that  the  consideration  actually  did  pass  before 
he  had  any  notice  of  a  defence. 

The  plaintiff,  in  taking  this  note  in  payment  of,  or  a& 
security  for  a  precedent  debt,  became  a  bona  fide  holder  for 
value,  and  is  entitled  to  protection  as  such.  Swift  v.  Tyson^ 
16  Peters  1 ;  Allaire  v.  Hartshorn,  1  Zab.  665. 

Can  the  proffered  defence  be  available  against  a  bona  fide 
holder  for  value  of  this  security  ? 

The  note,  which  does  not  contain  the  words  without  defal- 
cation or  discount,  was  drawn  subsequent  to  the  15th  of 
February,  1871,  at  which  time  the  act  took  effect  which  re- 
peals the  proviso  in  the  fourth  section  of  our  act  concerning 
promissory  notes. 

In  Youngs  v.  Little,  3   Gr.  1,  and    Cumberland  Bank  v. 
Hann,  3  Harr.  222,  it  was  held  that  a  promissory  note  made 
in  this  state,  containing  the  words  "without  defalcation  or 
Vol..  VII.  6 


94  NEW  JERSEY  SUPREME  COURT. 

State,  Camden  &  Amboy  K.  K.  and  T.  Co.,  Pros.,  v.  Woodruff. 

<liscount,"  had  precisely  tlie  force  and  effect,  under  our  statute, 
that  a  note  without  tiiose  words  had  at  common  law. 

Our  statute,  since  the  repealer  of  1871,  is  substantially  a 
copy  of  3  and  4  A7ine,  the  design  of  which  was  to  put 
promissory  notes  on  the  footing  of  inland  bills  of  exchange. 

So  that  now,  by  force  of  the  supplement  of  February  15th, 
1871,  this  promissory  note  is  as  secure,  in  the  hands  of  a 
bona  fide  holder  without  notice  against  the  propased  defence, 
as  a  note  with  the  omitted  words  in  it  would  have  been 
before  the  repeal. 

This  contract  was  made  in  the  State  of  New  York,  to  be 
performed  there,  and  in  construing  it  we  must  be  governed 
by  the  lez  loci  conlracius.  The  remedy  to  enforce  it  must  be 
according  to  the  lex  fori. 

No  proof  having  been  submitted  that  in* New  York  a  dif- 
ferent rule  prevails  from  that  which  applies  here,  it  is  not 
necessary  to  consider  whether  the  question  of  allowing  set-off' 
is  to  be  considered  as  part  of  the  remedy,  and  therefore  to  be 
controlled  by  our  own  law.     3  Vroom  104. 

In  my  opinion  the  defence  was  properly  rejected,  and  the 
iplaintiff"  is  entitled  to  his  judgment  upon  the  report. 


THE  STATE.  CAMDEN  AND  AMBOY  RAILROAD  AND  TRANS- 
PORTATION COMPANY,  PROSECUTORS,  v.  ROBERT  S. 
WOODRUFF,  JR.,  RECEIVER  OF  TAXES. 

1.  Under  the  cliarter  of  the  Camden  and  Amboy  Railroad  and  Trans- 
portation Company,  the  exemption  from  taxation  extends  to  all  prop- 
erty "suitable  and  proper  for  carrying  into  execution  the  powers 
granted  to  the  corporate  body." 

2.  The  judgment  of  the  court  must  be  passed  upon  the  question  of  neces- 
sity in  each  given  case  under  the  facts  adduced  to  show  the  purposes 
to  which  the  lauds  are,  or  are  to  be,  devoted. 

Z.  Lands  used  by  the  prosecutors  for  the  necessary  purposes  of  the  rail 
road  company,  are  exempt,  although  the  title  is  in  the  Delaware  and 
Raritan  Canal  Company,  for,  by   the   act   of  February    15th,    1831 


NOVEMBER  TERM,  1872.  95 

State,  Camden  &  Amboy  R.  R.  and  T.  Co.,  Pros.,  v.  Woodruff. 

"wliich  consolidates  these  companies,  there  is  an  absolute  community  of 
interest  between  them,  and  so  far  as  taxation  is  concerned,  it  matters  not 
to  which  company  the  estate  may  have  been  conveyed. 


Ou  certiorari.     In  matter  of  taxation. 

Argued  at  June  Terra,  1872,  before  Justices  Dalrimple, 
Depue  and  Van  Syckel. 

For  the  plaintiflfe,  E.  T.  Green. 

For  the  defendant,  J.  S.  Aitkin. 

The  opinion  of  tlie  court  was  delivered  by 

Van  Syckel,  J.  The  plaintiffs  claim  exem-ption  under 
their  charter,  from  the  burden  of  taxation  imposed  upon  their 
real  estate  in  the  city  of  Trenton. 

The  rule  which  governs  this  case  was  settled  in  the  Court 
of  Errors  in  State  v.  Hancock,  Collector,  6  Vroom  537.  The 
contest  arises  upon  its  application  to  the  facts  which  appear  in 
this  cause. 

The  exemption  extends  to  all  property  "  suitable  aud  proper 
for  carrying  into  execution  the  powers  granted  to  the  corporate 
body." 

What  is  necessary  for  the  uses  of  the  company  in  the  sense 
in  which  that  word  has  been  interpreted,  must  be  determuied 
by  the  court  according  to  the  facts  of  each  particular  case. 

The  mere  declaration,  under  oath,  of  an  oflQcer  or  servant  of 
the  company,  that  certain  property  is  necessary,  will  not  entitle 
it  to  immunity  from  taxation.  That  is  tlie  expression  of  the 
witnesses'  opinion,  founded  upon  facts  or  circumstances  witliiu 
his  own  knowledge,  the  correctness  of  which  the  court  would 
have  no  means  of  determining.  The  judgment  of  the  court 
must  be  passed  upon  the  question  of  necessity,  in  each  given 
case  under  the  facts  adduced,  to  show  the  purposes  to  which 
the  lands  are,  or  az'e  to  be,  devoted. 

In  the  case  cited,  it  appeared  that  a  portion  of  tlie  farm 
assessed  was  used  as  a  gravel  pit,  from  which,  by  means  of  a 
■connecting  track,  ballast  was  transported  for  the  main  lines  of 


96  XEW  JERSEY  SUPREME  COURT. 

State,  Camden  &  Amboy  R.  R.  and  T.  Co.,  Pros.,  v.  Woodruff. 

the  New  Jersey  Railroad  Company.  In  that  case  it  was  the 
judgment  of  the  court  upon  the  facts  proven,  not  the  opinion 
of  witnesses,  which  secured  the  exemption.  Only  one-third 
of  lot  No.  8,  page  64,  of  the  city  atlas,  is  now  occupied  by  the 
relators. 

The  only  witness  sworn,  says  that  this  lot  was  bought  for 
the  purposes  of  the  company,  and  is  necessary  for  their  uses, 
but  on  his  cross-examination,  he  states  that  rather  less  than 
one-half  of  it  will  be  required  by  them  for  bridges,  &c.,  and 
there  are  no  circumstances  shown  which  will  enable  the  court 
to  judge  of  the  necessity  for  their  holding  the  other  half.  One- 
half  of  this  lot,  therefore,  is  subject  to  the  burden  imposed  on  it^ 

One-third  of  lot  No.  12,  page  40,  is  occupied  by  railroad 
tracks,  and  it  is  alleged  that  the  "balaRce  is  to  be  occupied  for 
railroad  purposes,  but  whether  they  are  such  necessary  pur- 
poses as  to  bring  it  within  the  exemption,  does  not  appear,  and 
therefore  two-thirds  of  this  lot  is  taxable. 

The  title  to  some  of  the  lots  occupied  and  used  for  the 
necessary  purposes  of  the  railroad  company,  is  in  the  Dela- 
ware and  Raritan  Canal  Company,  and  it  is  insisted  that  such 
lots  are  not  exempt. 

The  act  of  February  15th,  1831,  consolidates  these  compa- 
nies with  an  express  provision  that  such  consolidation  shall  be 
subject  to  all  the  provisions,  reservations  and  conditions  con- 
tained in  their  original  charters.  This  carries  the  exemption 
to  all  property  owned  by  said  companies  which  is  necessary 
for  the  uses  of  either.  There  is  an  absolute  community  of 
interest  between  them,  and  so  far  as  taxation  is  concerned,  it 
matters  not  to  which  company  the  estate  may  have  been  con- 
veyed. 

In  my  opinion  the  assessment  against  all  the  lots  of  the 
railroad  company,  except  as  against  one-half  of  No.  8,  page 
64,  and  two-thirds  of  No.  12,  page  40,  should  be  set  aside. 

Cited  in  State,  United  B.  B.  and  Canal  Co.,  pros.,  v.  Woodruff,  8  Vr.  240.^ 


NOVEMBER  TERM,  1872.  97 


Slate,  Keeler  et  al.,  Pros.,  v.  Tindall,  Collector  of  Ewing. 


THE  STATE,  CHAS.  KEELER  AND  OTHERS,  PROSECUTORS, 
V.  WILLIAM  C.  TINDALL,  COLLECTOR  OF  EWING,  &c., 
DEFENDANT. 

1.  Under  the  eighth  section  of  the  tax  law  of  1866,  {Nix.  Dig.  952,)  it  is 
not  necessary,  in  order  to  make  a  valid  assessment,  that  the  assessor 
shall  examine  persons  to  be  assessed  by  oatli  or  afErmation. 

2.  The  essential  thing  to  be  done  by  the  assessor  under  this  act  is  to 
ascertain,  to  the  best  of  his  ability  and  according  to  his  own  judgment, 
the  names  of  the  persons  taxable,  and  the  actual  value  of  all  taxable 
property ;  and  this  he  is  to  do  by  diligent  inquiry,  by  the  oath  or 
affirmation  of  the  persons  to  be  assessed,  or  of  other  persons  if  neces- 
sary, and  by  personal  examination  of  the  property  to  be  valued. 

3.  With  respect  to  the  enumerated  means  or  sources  of  information,  by 
or  from  which  the  value  of  property  is  to  be  ascertained  by  the 
assessor,  the  act  is  not  mandatory,  but  merely  directory. 


On  certiorari.  In  matter  of  taxation. 
For  the  prosecutors,  G.  D.  W.  Vi-oom, 
For  the  defendant,  W.  D.  Holt. 

WoODHULL,  J.  It  is  insisted  that  the  assessment  brougnt 
'up  by  this  writ  ought  to  be  set  aside  as  to  the  prosecutors, 
because,  in  the  first  place,  the  assessor  failed  to  require  of  them 
sworn  statements  as  to  the  actual  value  of  their  taxable 
property. 

In  support  of  this  objection,  we  are  referred  to  that  part  of 
the  eighth  section  of  the  tax  law  of  1866,  {Nix.  Dig.  952,)* 
which  provides  that  the  assessor  shall  annually  ascertain,  by 
diligent  inquiry,  and  by  the  oath  or  affirmation  of  the  persons 
to  be  assessed,  and,  if  necessary,  of  other  persons,  according 
to  the  best  of  his  ability,  and  according  t@  his  own  judgment 
after  examination  and  inquiry,  the  names  of  all  the  persons, 
and  the  actual  value  of  all  the  property  taxable  in  his  township. 

*E£v.,p.  1153,  §67. 


98  NEW  JERSEY  SUPREME  COURT. 

State,  Keeler  et  al.,  Pros.,  v.  Tindall,  Collector  of  Ewing. 

This  section  confers  upon  the  assessor  a  now  ])o\ver,  that  of 
examining  persons  to  be  assessed,  and  others,  by  oath  or 
affirmation,  but  we  do  not  understand  it  to  mean  that  this 
power  must  in  every  case  be  exercised  in  order  to  make  a 
valid  assessment. 

Tiie  essential  thing  to  be  done  by  the  assessor  under  this 
act  is  to  ascertain,  to  the  best  of  his  al>ility,  and  according  to 
his  own  judgment,  the  names,  &c.,  and  the  actual  value,  &(\ 
He  is  to  do  this  by  diligent  inquiry,  by  the  oath  or  affirma- 
tion of  the  persons  to  be  assessed,  by  the  oath,  &c.,  of  other 
persons  if  necessary,  and  by  personal  examination  of  the 
property  to  be  valued. 

These  are  merely  the  means  or  sources  of  information,  to 
one  or  more  of  which  he  must  necessarily  resort  in  order  to 
ascertain  the  value,  &c.,  so  as  to  satisfy  his  judgment.  But 
having  ascertained,  &c.,  by  the  use  of  any  of  the  enumerated 
means — for  example,  by  diligent  inquiry  in  the  ordinary  way, 
and  by  personal  examination  of  the  property — it  can  hardly 
be  supposed  that  the  legislature  would  impose  upon  the 
assessor  the  nugatory  task  of  ascertaining  the  same  thing  by 
the  use  of  different  means,  no  more  competent  and  certainly 
no  more  reliable  than  those  resorted  to  in  the  first  place.  If 
the  words  "shall  ascertain,  &c.,  and  by  the  oath,  &c.,"  are 
imperative  in  regard  to  the  oath  of  the  person  to  be  assessed, 
they  are  equally  so  as  to  some  of  the  other  means,  etc.,  men- 
tioned in  this  section  ;  and  if  imperative  as  to  any  of  these 
for  the  purpose  of  ascertaining  the  value,  &c.,  they  can  not 
be  less  so  for  the  purpose  of  ascertaining  the  names,  &c.  For 
the  names  of  all  persons  to  be  assessed,  and  the  actual  value 
of  their  taxable  property  are  to  be  ascertained  by  precisely  the 
same  means. 

The  true  sense  of  this  part  of  the  act,  considering  merely 
its  language  and  the  character  of  its  provisions,  seems  to  be 
that  it  is  mandatory  only  so  far  as  it  relates  to  the  chief  duty 
enjoined  upon  the  assessor,  viz, :  the  making  up  by  him  of  an 
independent  judgment  as  to  the  actual  value  of  the  jiroperty 
to  be  assessed ;   and   that  with    respect   to    the   enumerated 


NOVEMBER  TERM,  1872.  9& 

State,  Keeler  et  al.,  Pros.,  v.  Tindall,  Collector  of  Ewing. 

means  or  sources  of  information,  by  or  from  which  the  value 
is  to  be  ascertained,  the  act  is  merely  directory. 

A  glance  at  the  changes  introduced  by  the  act  of  1866  in 
the  methods  of  ascertaining  values  for  the  purposes  of  taxation, 
will  serve  to  confirm  the  conclusion. 

A  marked  feature  in  the  policy  of  the  acts  of  1851  and 
1854,  was  the  taxation  of  all  property  at  its  full  value.  [Acts^ 
1851,  p.  272,  §  2;  Ads,  1854,  p.  296,  §  2.) 

With  the  view  of  reaching  this  result,  assessors  were  re-- 
quired  to  ascertain  the  same  things  as  under  the  act  of  1866 — 
the  names,  &c.,  and  the  values,  &c.  They  were  to  do  this  by 
diligent  inquiry,  and  according  to  the  best  of  their  ability, 
(1851,  §  8;  1854,  §  8.)  But  if  the  person  to  be  assessed, 
chose  to  make  oath  that  the  value  of  his  property  did  not 
exceed  a  certain  sum,  the  assessor  was  bound  to  accept  his 
judgment  as  final,  in  regard  to  that  matter.  Ads,  1851,  p. 
274,  §  10;  Ads,  1854,  jo.  299,  §  10. 

The  results  of  this  method  of  ascertaining  the  value  of  tax- 
able properly  were  not  satisfactory.  Under  its  operation  a 
vast  amount  of  the  property  in  the  state  v;as  notoriously  taxed 
far  below  its  actual  value. 

The  act  of  1866  reaffirms  and  emphasizes  the  policy  of  the 
earlier  acts,  {Nix.  Dig.  951,  §  2,)*  declaring  that  all  property 
within  this  state  shall  be  liable  to  taxation  at  the  full  and 
actual  value  thereof;  and  with  the  view  of  securing  a  more 
thorough  enforcement  of  this  policy,  it  withdraws  the  question 
of  value  from  the  owner,  and  commits  it  exclusively  to  the 
judgment  of  the  assessor  himself,  furnishing  him,  at  the  same 
time,  with  a  means  of  informing  his  judgment,  not  previously 
within  his  reach,  viz. :  the  rigiit  to  examine,  on  oath,  the 
person  to  be  assessed,  and  if  necessary,  other  persons.  Such 
being  the  spirit  and  purpose  of  the  act,  and  such  the  object  of 
this  provision,  can  we  doubt  that  the  legislature  intended  to 
allow  the  assessor  to  decide  for  himself  whether  or  not  he 
would  require,  from  the  person  assessed,  a  sworn  statement  of 
the  value  of  his  property? 

The  danger  to  be  guarded  against,  being  not  a  tendency  to 

*  Rev.,  p.  1150,  ?  61. 


100  NEW  JERSEY  SUPREME  COURT. 

State,  Keeler  et  al.,  Pros.,  v.  Tindall,  Collector  of  Ewing. 

overvalue,  but  almost  universally  to  undervalue  property  ftr 
purposes  of  taxation,  why  should  the  assessor  be  compelled  to 
examine  on  oath,  the  only  persons  specially  interested,  to  esti- 
mate the  property  at  less  than  its  full  value? 

The  very  fact  o^  his  being  required  to  resort,  in  all  cases,  to 
the  testimony  of  the  owners,  would  be  likely  to  induce  him  to 
defer  too  much  to  their  judgment,  and  to  rely  too  little  upon 
his  own ;  and  would  tend,  almost  necessarily,  to  keep  assess- 
ments below  the  actual  value,  and  so  to  defeat  the  purpose  of 
the  act. 

For  these  reasons  we  cannot  accept  the  construction  of  the 
clause  "  shall  ascertain,  dbc,"  contended  for  on  the  part  of  the 
prosecutors,  and  I  think  that  the  first  objection  to  the  assess- 
ments ought  not  to  prevail. 

It  is  further  objected  to  these  assessments,  that  they  are 
excessive  and  illegal ;  and  that  they  are  based  upon  the 
amount  of  the  yearly,  rental  of  the  properties  assessed,  and  not 
upon  the  full  and  actual  value  thereof,  as  required  by  law. 

These  objections  involving  merely  questions  of  fact,  which 
must  be  determined  by  the  testimony  taken  in  the  cause,  we 
think  it  suflBcient  to  say  that  we  do  not  find  either  of  them  so 
clearly  sustained  by  the  evidence  as  to  warrant  us  in  disturb- 
ing the  assessments,  or  either  of  them ;  and  they  are,  therefore^ 
affirmed. 

Cited  in  Slate,  Bobbins,  proa.  v.  Treasurer,  <fec.,  9  Vr.  212. 


CASES  DETERMINED 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 

OF   THE 

STATE   OF   NEW  JERSEY, 

AT  FEBRUABY  TERM,  1873. 


THE  STATE,  THE  BOAKD  OF  POLICE  .COMMISSIONEKS  OF 
JEKSEY  CITY  AND  WILLIAM  DeHAKT,  PKESIDENT  OF 
SAID  BOARD,  RELATORS,  v.  EZEKIEL  M.  PRITCHARD, 
THOMAS  EDMONDSON,  THOMAS  A.  GROSS,  AND  FRED- 
ERICK A.  GOETZE,  DEFENDANTS. 

1.  The  right  to  remove  a  state  officer  for  misbehavior  in  office  does  not 
appertain  to  the  executive  office — such  act  is  judicial,  and  belongs  to 
the  court  of  impeachments. 

2.  Certain  police  commissioners  of  Jersey  City,  appointed  by  statute, 
having  been  convicted  upon  indictment  of  conspiracy  to  cheat  the 
city,  and  the  governor  having  declared  their  offices  to  be  thereby 
vacated,  and  having  appointed  their  successors — Held,  that  such 
executive  action  was  illegal  and  void. 


This  was  an  information  in  the  nature  of  a  quo  warranto. 

The  information  set  forth  the  following  facts,  viz. :  That 
■Jersey  City  was  duly  incorporated  by  virtue  of  an  act 
entitled  "An  act  to  reorganize  the  local  government  of  Jersey 
City,"  passed  March  31st,  1871,  and  that  by  a  certain  section 
of  said  act  a  board  of  police  commissioners,  consisting  of  five 
members,  was  constituted,  and  that  said  board  should  be  the 

101 


102  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritcliard  et  al. 

individuals  named  in  said  act,  and  that  their  successors  should 
be  chosen  by  the  senate  and  general  assembly  in  joint  meet- 
ing, and  that  one  of  the  members  should  hold  his  office  for 
one  year,  two  for  two  years,  and  two  of  them  for  three  years ; 
that  the  senate  and  general  assembly  of  each  succeeding 
legislature  should,  i'l  joint  meeting,  choose  as  many  persons- 
to  l)e  members  oi  «:aid  board  as  should  be  required  to  fill 
vacancies  therein,  and  that  it'  any  vacancy  should  occur  by 
the  death,  resignation,  or  disqualification  of  any  incumbent 
after  the  final  adjournment  of  the  legislature  and  prior  to  the 
assembling  of  the  next  legislature,  such  vacancy  should  be 
filled  by  the  governor  of  the  state,  by  the  appointment  of  a 
suitable  and  discreet  citizen  of  Jersey  City,  who  should  con- 
tinue in  his  said  office  till  his  successor  should  be  chosen, 
which  said  successor  should  be  chosen  by  the  senate  and 
general  assembly  next  succeeding  the  occurrence  of  the 
vacancy. 

That  by  another  section  of  said  act  it  was  provided  that 
said  board  of  police  commissioners  should  consist  of  the  five 
following  persons,  viz. :  Thomas  Edmondson,  Frederick  A. 
Goetze,  Thomas  A.  Gross,  Isaiah  S.  Hutton,  and  Ezekiel  M. 
Pritchard.  That  said  police  commissioners  having  been  duly 
qualified  went  into  said  office;  and  that  the  said  Isaiah  S. 
Hutton's  term  having  expired,  one  Jacob  Y.  Marinus  was 
appointed  by  the  senate  and  general  assembly  to  succeed  him. 

That  afterwards,  on  the  22d  day  of  June,  1872,  by  the 
consideration  and  judgment  of  the  Court  of  Oyer  and  Ter- 
miner and  General  Jail  Delivery  of  the  county  of  Hudson, 
the  said  Edmondson,  Pritchard  and  Gross  were  convicted  of 
the  crime  (in  the  words  of  the  information,)  of  conspiracy  to 
cheat  and  defraud,  and  of  cheating  and  defrauding  the  mayor 
and  aldermen  of  Jersey  City  of  the  moneys  of  the  said  mayoi 
and  aldermen,  which  crime  they  had  committed  during  the 
term  for  which  they  were  severally  appointed  to  said  office, 
and  while  they  held  the  same  as  aforesaid,  and  were  sentenced 
to  pay  each  a  fine  of  one  hundred  dollars,  &c. ;  and  that  the 
said  crime  of  which    they,   the   said   Thomas   Edmondson^ 


FEBRUARY  TERM,  1873.  lOS 

State,  ex  rel.  Police  Com'rs  of  Jersey  Citv,  v.  «Pritchard  et  al. 

Ezekiel  M.  Pritchard  and  Thomas  A.  Gross,  were  so  con- 
victed as  aforesaid,  was  an  infamous  crime,  and  contrary  to 
the  duty  of  the  said  office  of  police  commissioners,  whereby 
the  said  offices  so  before  that  time  and  then  held  by  them^ 
the  said,  &c.,  became  forfeited  and  vacant  by  reason  of  the 
disqualification  of  the  said,  &c.,  being  severally  so  disquali- 
fied to  hold  said  office  ;  afterwards,  to  wit,  on  the  30th  day 
of  July,  in  the  year  of  our  Lord  1872,  his  excellency,  Joel 
Parker,  governor  of  the  State  of  New  Jersey,  duly  and  legally 
appointed  and  commissioned  the  said  William  DeHart  a 
police  commissioner  of  Jersey  City  in  the  place  of  the  said 
Thomas  Edmondson,  the  said  James  Flemming  in  the  place 
pf  the  said  Ezekiel  M.  Pritchard,  and  the  said  Matthew 
Monks  in  the  place  of  the  said  Thomas  A.  Gross ;  and  that 
afterwards,  on  the  13th  day  of  August,  in  the  year  last 
aforesaid,  the  said  Joel  Parker,  governor  as  aforesaid,  issued 
to  the  said  Thomas  Edmonson,  Ezekiel  M.  Pritchard  and 
Thomas  A.  Gross,  each  a  writ  or  notice  of  discharge,  under 
the  great  seal  of  the  State  of  New  Jersey,  discharging  each 
of  them  from  his  said  office  of  police  commissioner  of  Jersey 
City,  and  requiring  them  each  to  deliver  to  the  said  William 
DeHart,  James  Flemming  and  Matthew  Monks,  everything 
pertaining  to  the  said  office  of  police  commissioner  of  Jersey 
City  which  remained  in  their  possession  or  under  their  control, 
with  the  appurtenances  to  the  said  office  belonging,  &c." 
There  was  a  further  averment,  that  the  new  appointees  were 
duly  qualified  and  took  upon  themselves  the  said  office;  and 
it  was  then  stated  that  the  old  incumbents  refused  to  surrender 
their  positions,  which  yfas  followed  with  the  usual  allegation 
that  without  right  they  were  still  usurping  the  privileges, 
liberties  and  franchises  to  the  said  office  belonging,  &c. 

In  the  body  of  this  information,  a  transcript  of  the  indict- 
ment and  conviction  of  the  defendants  for  the  conspiracy  re- 
ferred to  was  set  out. 

The  plea  of  the  defendants  consisted  in  a  statement  of  fheir 
title  to  the  office  by  their  appointment  in  the  manner  set  out 


104         NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Pplice  Cora'rs  of  Jersey  City,  v.  Pritcliard  et  al. 

in  the  information,  concluding  with  the  formal  averment  that 
they  had  not  usurped  the  said  office,  &c. 

There  was  also  a  second  plea,  which  it  is  not  necessary  to 
■notice. 

To  these  pleas  there  was  a  general  demurrer. 

Argued  at  November  Term,  1872,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Scudder. 

For  the  relators,  L.  Ahhett  and  S.  B.  Ransom. 

For  the  defendants,  /.  Dixon,  Jr.,  and  C.  Parker. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  question  to  be  resolved 
"in  this  case,  is  an  important  one,  touching  as  it  does,  the 
authority  of  the  chief  executive  officer  of  the  state,  and  involv- 
ing, in  a  material  particular,  the  tenure  of  public  offices.  Such 
a  subject  very  manifestly  required,  and  has  received,  a  careful 
and  deliberate  consideration,  on  the  part  of  the  court. 

The  facts  of  the  case,  which  give  rise  to  the  proposition  to 
he  discussed,  stripped  of  all  unnecessary  particularities,  are 
simply  these.  Certain  members  of  the  board  of  police  com- 
missioners of  Jersey  City  were  convicted  in  a  criminal  court 
of  a  conspiracy  to  defraud  the  city,  by  means  of  their  office ; 
and,  the  attorney-general  advising  the  course,  his  excellency 
the  governor,  declared  and  adjudged  the  offices  of  such  con- 
victs to  be  vacant,  and,  accordingly,  appointed  their  successors. 
The  inquiry  is,  whether,  by  tlie  conviction  of  these  criminals, 
•ar  by  the  adjudication  of  the  governor,  these  offices  became 
vacant,  for  if  this  was  so,  the  appointment  of  substitutes  was 
admittedly  proper  under  the  statute. 

There  are  two  points  for  inquiry  then  :  first,  does  a  public 
office,  by  the  mere  fact  of  the  malfeasance  of  the  incumbent 
with  respect  to  it,  and  anterior  to  any  judicial  judgment  upon 
the  subject,  become  forfeited ;  and  second,  if  such  forfeiture 


FEBRUARY  TERM,  1873.  105- 

State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

does  not  thus  occur,  can  the  governor  of  the  state  adjudge  the 
question  and  declare  a  vacancy  ? 

At  the  hearing  in  this  court,  the  counsel  for  the  relators 
strongly  pressed  the  conclusion  that,  inasmuch  as  a  conviction- 
of  the  crime  of  conspiracy,  by  force  of  the  act  concerning 
witnesses,  incapacitates  the  convict  from  being  a  witness  in  a 
judicial  proceeding,  and  in  consequence  thereof,  the  constitu- 
tion prohibits  such  convict  from  enjoying  the  right  of  suffrage,. 
that,  as  a  necessary  result,  there  was  a  deprivation  also  of 
the  prerogative  to  hold  office.  But  this,  I  think,  is  a  manifest 
non  sequitur.  Because,  as  a  punishment,  the  law  has  denounced 
the  loss  of  two  of  the  rights  of  citzenship,  it  does  not  follow 
that  a  third  right  is  to  be  withheld  from  the  delinquent.. 
Indeed  the  reverse  result  is  the  reasonable  deduction,  because, 
it  is  clear  on  common  principles,  that  no  penalty  for  crime 
but  that  which  is  expressly  prescribed  can  be  exacted.  The 
fact  that  severely  penal  consequences  are  annexed  by  statute 
to  the  commission  of  a  breach  of  law,  cannot  warrant  the 
aggravation,  by  the  judicial  hand,  of  the  punishment  pre- 
scribed. In  this  case  it  is  impossible  for  this  court  to  say  to 
these  officials,  that  in  consequence  of  their  crime,  the  statute 
declares  that  they  cannot  be  witnesses,  and  that  the  constitu- 
tion deprives  them,  on  the  same  ground,  of  the  right  to  vote,, 
and  that,  therefore,  the  law  inflicts  upon  them  a  forfeiture  of 
office.  It  may  well  be,  that  the  provision  would  be  both 
just  and  expedient,  which  should  declare  that  the  conviction 
of  any  official  delinquency,  should,  ipso  facto,  work  a  forfeit- 
ure of  the  office  which  had  been  so  abused.  It  is  possible 
that  the  legislature,  upon  attention  being  called  to  the  subject, 
might  pass  an  act  with  such  an  aspect,  but  all  that  the  court 
can  say  is,  that  no  such  law  is  now  in  existence.  The  pun- 
ishment of  the  crime  of  conspiracy  is  definitely  fixed  by  the 
constitution  and  by  the  statute :  no  addition  can  be  made  to 
this  measure  except  with  the  legislative  sanction.  The 
severity  of  the  present  punishment,  may  indeed  denote  that  the 
'.rime  is  of  a  high  grade;  but  that  fact  leaves  the  question  at 
issue  still  to  be  solved,  whether  a  conviction  of  any  crime 


106  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

operates,  in  the  absence  of  any  adjudication  to  that  effect,  and 
without  express  statutory  provision,  so  as  to  forfeit  an  office 
as  a  legal  result.  I  do  not  think  the  present  application  can 
stand  on  this  first  ground. 

In  the  second  place  the  counsel  of  the  relators,  in  support 
of  their  side  of  the  case,  appealed  to  the  rules  of  the  com- 
mon law,  insisting  that,  according  to  the  usages  of  that 
system,  the  king  could  seize  upon  a  public  office,  on  the 
ground  that  it  had  been  forfeited  by  misconduct.  But  I  have 
not  found  that  the  cases,  with  which  the  court  was  favored, 
sustain  the  royal  prerogative  to  so  wide  an  extent  as  is  claimed 
in  this  proposition.  Indeed,  among  all  the  cases  that  I  have 
examined,  I  find  no  exemplification  of  the  exercise  of  such 
an  act  of  authority.  On  the  contrary,  it  seems  to  me  quite 
clear  that  the  removal  of  an  officer,  holding  for  a  definite 
term,  by  the  sovereign,  mej'o  motu,  on  the  plea  of  misbehavior, 
would  have  been  a  plain  usurpation.  I  can  find  nowhere 
any  traces  of  such  a  right  having  been  claimed.  And  when 
we  consider  that  some  of  the  offices  under  that  government 
were  held  for  life,  and  others  in  fee,  and  that  most  of  them 
have  ever  been  regarded  as  property  of  great  value,  it  would 
certainly  be  matter  of  surprise  if  we  found,  in  a  system  in 
which  all  valuable  interests  are  so  jealously  guarded,  that 
franchises  of  such  moment  should  be  liable  to  divestment  on 
the  arbitrary  judgment  of  the  monarch.  If  such  a  despotic 
power  had  existed,  it  would  have  left  very  abundant  indica- 
tions of  its  abuse  during  those  reigns  which  are  memorable 
for  little  else  than  the  oppression  of  the  subject  and  the 
rapacity  of  the  ruler.  But  neither  in  the  history  of  ilie 
nation,  nor  in  the  judicial  decisions,  do  we  perceive  any  maiks 
of  the  possession,  by  the  sovereign,  of  such  a  prerogative. 
But,  to  the  reverse,  it  will  be  found  that,  in  this  respect,  as  in 
all  others,  the  rights  of  the  office  holder  were  carefully  pro- 
tected, and  that  he  could  not  be  deprived  of  them  except  by 
due  process  of  law.  The  method  of  proceeding  against  a 
-delinquent  official,  was  thus : 

When  a  question  arose  whether  an  office  was  forfeited,  so 


FEBRUARY  TERM,  1873.  107 


State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

that  the  king  was  entitled  to  the  possession  of  it,  an  inquest 
of  office  was  instituted,  which,  we  are  told,  was  an  inquiry 
made  by  the  king's  officer,  his  sheriff,  coroner  or  escheator, 
virtute  officii,  or  by  writ  to  them  sent  for  that  purpose,  or  by 
commissioners  specially  appointed.  "  These  inquests  of 
office,"  says  Blackstoue,  3  Com.,  ch.  17,  "were  devised  by 
law,  as  an  authentic  means  to  give  the  king  his  right  by 
solemn  matter  of  record,  without  which  he  in  general  can 
neither  take,  nor  part  from  any  thing.  For  it  is  a  part  of  tiie 
liberties  of  England,  and  greatly  for  the  safety  of  the  subject, 
that  the  king  may  not  enter  upon  and  seize  any  man's  pos- 
session, upon  bare  surmises,  without  the  intervention  of  a 
jury."  If  such  inquisition  resulted  favorably  to  the  preten- 
sions of  the  king,  he  could  at  once  enter  into  the  possession 
of  the  office.  But  such  action  was  far  from  concluding  tli-e 
rights  of  the  office  holder.  He  held  his  franchise  by  letters 
patent,  and  tiiese  could  not  be  annulled  except  by  judicial 
decision.  The  authority  just  vouched,  tells  us  "  that  where 
the  patentee  hath  done  any  act  that  amounts  to  a  forfeiture 
of  the  grant,  the  remedy  to  repeal  the  patent  is  by  scire  facias 
out  of  chancery."  This  latter  process  could  be  brought 
by  the  king,  in  order  to  resume  the  thing  granted,  or  if  the 
rights  of  a  subject  were  involved,  the  king  was  bound,  upon 
petition,  to  allow  the  use  of  this  remedy.  And  we  have  high 
authority  for  the  proposition  that  where  a  common  person  is 
obliged  to  bring  his  action  ;  there  upon  an  inquisition  or  office 
found,  ttie  king  is  put  to  his  scire  facias.     9  Bep.  96. 

And  it  is  important  that  the  nature  of  this  proceeding  by 
scire  facias  should  be  noted.  This  process  was  an  original 
writ  issuing  out  of  chancery,  and  could  be  made  returnable 
into  the  king's  bench.  It  was  required  to  be  founded  en 
some  matter  of  record.  In  point  of  form  the  scire  facias 
recited  the  patent,  and  set  forth  the  grounds  of  forfeiture. 
On  the  return  of  the  writ  the  defendant  could  appear,  and, 
if  the  matter  alleged  was  not  sufficient  for  the  repeal  of  the 
-patent,  he  could  demur,  or  he  could  deny  the  facts  stated,  in 


108  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Police  Coin'is  of  Jersey  City,  v.  PritcJiard  el  al. 

which  latter  event  the  issue  was  sent,  as  in  common  cases,  to 
be  tried  by  a  jury. 

Nor  was  the  office  holder  remediless  iu  case  the  king,  upon 
office  found,  went  into  possession  of  the  franchise  and  refrained 
from  issuing  a  scire  facias  to  repeal  the  patent.  "  In  order 
to  avoid  the  possession  of  the  crown  acquired  by  the  finding 
of  such  office,"  the  language  is  again  that  of  Sir  William 
Blackstone,  "the  subject  may  not  only  have  his  petition  of 
right,  which  discloses  new  facts  not  found  by  the  office,  and 
his  monstrans  de  droit,  which  relies  on  the  facts  as  found,  but 
also  he  may  (for  the  most  part)  traverse  or  deny  the  matter  of 
fact  itself,  and  put  it  in  a  course  of  trial  by  the  common  law 
process  of  a  court  of  chancery.;  yet  still,  in  some  special 
cases,  he  hath  no  remedy  left  but  a  mere  petition  of  right. 
These  traverses,  as  well  as  the  monstrans  de  droit,  were  greatly 
enlarged  and  regulated  for  the  benefit  of  the  subject  by  the 
statutes  before  mentioned,  and  others." 

That  by  force  of  the  English  law,  the  king  could  not  take 
into  his  hands  on  his  own  judgment  an  office  on  the  ground 
in  question,  is  abundantly  shown  in  all  the  line  of  adjudica- 
tion relating  to  the  subject.  There  is  a  long  array  of  such 
cases,  systematically  arranged  by  Lord  Coke,  in  Sir  George 
Reynel's  case.     9  Eep.  95. 

Nor  does  the  case  of  Sir  John  Savage,  which  was  much 
pressed  upon  the  argument  by  the  counsel  of  the  relators, 
gainsay  the  principle  above  enunciated.  For  this  decision 
(2  Dyer,  p.  151,)  was  referred  to;  but  this  account  is  too- 
meagre  to  be  perspicuous,  and  the  point  and  grounds  of 
judgment  can  be  made  intelligible  only  by  reference  to  the 
narration  in  Keilway,  p.  194.  This  report  is  in  Norman 
French,  and  any  gentleman  who  has  (perhaps)  improved  a 
part  of  his  leisure  in  acquiring  an  insight  into  that  unclassic 
jargon,  will  find  that  the  subject  of  inquiry  was  this :  The 
defendant  was  sheriff  of  Worcester,  and  an  information  was 
exhibited  in  the  King's  Bench  showing  his  title,  and  reciting 
that  the  commissioners  of  Oyer  and  Terminer  had  found  that 
he  held  such  office  by  letters  patent  in  fee ;  that  certain  persons- 


FEBRUARY  TERM,  1873.  109 


State,  ex  rel.  Police  Com'rs  of  Jersey  City  y.  Pritchard  et  al. 

charged  with  felony  had  been  committed  to  his  custody  whom 
he  had  "  willfully  and  feloniously  "  suffered  to  escape.  The 
information  then  stated  that  for  this  cause  the  king  had  taken 
possession  of  the  office.  After  these  averments,  then  followed 
a  statement  that  upon  these  facts  a  scire  facias  had  been 
awarded,  setting  forth  these  matters,  and  directing  the  defend- 
ant to  appear  and  show  cause  wherefore  our  letters  patent 
aforesaid,  &c.,  should  not  be  annulled,  revoked  and  cancelled. 
To  this  information  the  defendant  appeared  and  pleaded,  and 
two  of  the  questions  mooted  and  decided  were,  whether  the 
commissioners  of  Oyer  and  Terminer  could  hold  an  inquest  of 
office,  and  whether  the  finding  of  two  indictments  for  miscon- 
duct in  office  was  equivalent  to  the  finding  of  a  forfeiture,  and 
the  court  held  in  the  affirmative  on  both  points.  Lord  Coke, 
in  Sir  George  Reynel's  case  just  cited,  refers  to  this  decision  as 
establishing  the  rule  that  "  two  matters  of  record  shall  amount 
to  an  office."  This  authority,  therefore,  which  seems  to  be 
somewhat  anomalous,  falls  short  of  giving  support  to  the 
proposition  that  an  indictment  and  conviction  would  have  jus- 
tified the  seizure  of  an  office  on  the  part  of  the  English 
sovereign.  "  An  information,  or  an  indictment  for  an  offence 
Avhich  is  a  cause  of  forfeiture,  and  a  conviction  on  it,"  is  given 
by  Baron  Comyns,  as  a  foundation  for  a  scire  facias  to  repeal 
letters  patent,  but  no  authority  has  been  adduced,  nor,  as  is 
believed,  can  be  found,  to  the  effect  that  such  proceedings  will 
in  themselves  justify  the  resumption  of  the  official  franchise 
without  suit  by  the  monarch. 

The  result  to  which,  therefore,  I  am  led  is,  that  even  on 
the  assumption  that  the  modes  of  proceeding  with  respect  to 
forfeited  offices,  are  identical  in  this  state  with  those  which 
were  established  in  use  under  the  English  government,  never- 
theless, the  defendants  in  this  case,  under  the  circumstances 
stated  in  the  pleadings,  could  not  lawfully  be  put  aside  from 
their  official  positions  on  the  ground  which  thus  far  has  been 
the  subject  of  discussion.  It  has  appeared  that  an  indict- 
ment and  conviction  are  not  equivalent  to  an  inquest  of  office. 
Vol.  VII.  7 


110         NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Police  Cora'rs  of  Jersey  City  v.  Pritchard  et  al. 

and  that  consequently  the  king  in  such  a  condition  of  things, 
could  not  have  entered  and  ousted  the  office  holder  from  the 
possession.  If  this  is  so,  it  concededly  must  follow  that  such 
power  does  not  reside  in  the  executive  of  this  state. 

But  my  consideration  of  the  questions  involv^ed  in  this 
inquiry  has  also  entirely  satisfied  me,  that  there  is  not  the 
least  propriety  in  the  assumption  that  the  authority  of  our 
executive  over  public  offices,  is  at  all  comparable  with  that 
of  the  English  king.  And  I  have  stated  the  common  law 
mode  of  proceeding  with  regard  to  official  misbehavior,  not 
because  I  think  such  mode  applicable  to  our  political  system, 
but  for  the  purpose,  to  some  extent,  at  least,  of  showing  its 
discordance  with  such  system.  The  very  ground-work  of 
the  common  law  practice  is  wanting  with  us.  At  common 
law,  the  theory  was  that  the  king  was  the  head  and  fountain  of 
all  office.  An  office  was  considered  a  royal  franchise  in  the 
hands  of  a  subject.  In  legal  contemplation,  the  incumbent 
held  directly  from  and  under  the  crown,  one  of  the  implied 
conditions  of  such  holding  being  that  the  duties  of  the  office 
should  be  properly  discharged.  It  was,  hence,  the  natural 
product  of  this  theory  that  if  such  condition  was  broken,  he 
who  had  granted  could  retake  the  gift  into  possession.  It 
stood  upon  the  footing  of  other  species  of  property  growing 
out  of  conditional  grants.  Out  of  jealousy  of  the  royal 
power,  the  free  genius  of  the  common  law  declared  a  disa- 
bility in  the  king  to  enter  upon  the  office  without  a  finding 
of  this  condition  having  .been  broken  by  an  inquest  of  office. 
But  still  the  principle  was  recognized,  although  put  under  a 
check,  that  the  power  of  appointment  involved,  as  an  apt 
incident  or  convenient  supplement,  the  right  to  supervise  and 
remove.  In  addition  to  this,  the  king  had  originally  sat 
as  the  supreme  judge,  in  the  aula  regia,  and  hypothetically  at 
least,  continued  to  be  the  chief  administrator  of  the  laws, 
and  dispenser  of  Justice.  It  consistently  resulted  that  a 
ruler,  clothed  with  such  powers  as  these,  should,  subject  to 
the  limitations  already  defined,  be  also  invested  with  the 
Buperinteudency  over  public  offices.     Every  officer   was  the 


FEBRUARY  TERM,  1873.  Ill 

State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

•deputy  of  the  sovereign  ;  the  condition  of  the  tenure  was  good 
behavior,  and  on  the  breach  of  such  condition,  t-he  king,  as 
the  general  patron  of  official  franchise,  and  the  representative 
of  the  public  interests,  was  empowered,  in  the  mode  prescribed 
by  the  law,  to  have  a  forfeiture  of  the  office  declared. 

But  none  of  these  royal  prerogatives,  which  so  appropri- 
ately embrace  an  absolute  control  over  all  public  offices,  are  to 
be  found  among  the  powers  which  go  to  make  up  the  authority 
of  the  executive  of  this  state.  Neither  theoretically  nor  in 
practice  is  the  executive  the  fountain  of  office.  Nor  are 
public  offices  franchises  of  the  executive,  nor  does  he  dis- 
tribute them  among  his  deputies.  According  to  the  polity  of 
.  this  commonwealth,  all  public  office  proceeds,  in  theory  and 
in  fact,  from  the  people.  With  respect  to  some  of  the  more 
important  offices,  the  governor  cannot  fill  them  by  appoint- 
ment; his  function  is  that  of  nomination,  and  with  respect  to 
others  of  them,  he  has  no  concern  ;  they  are  under  legislative 
control  solely.  In  the  present  instance  the  incumbents  who 
are  sought  to  be  amoved,  were  appointed*  by  a  special  act  of 
legislation  ;  they  hold  their  positions  from  the  people.  How 
then  can  it  be  said  that  they  are  accountable  to  the  governor 
with  regard  to  their  official  conduct?  By  the  statute  in  ques- 
tion, the  executive  is  not  given  any  supervision  over  these 
officials ;  all  the  authority  that  it  confers  upon  him,  is  to  fill 
the  office  in  case  of  a  vacancy.  It  imparts  to  him  no  faculty 
to  declare  judicially  that  such  vacancy  has  occurred,  and  if 
such  faculty  exists,  it  must  be  as  an  inherent  constituent  of  the 
executive  office.  I  have  not  been  able  to  perceive  any  inti- 
mation, not  even  the  least,  either  in  the  constitution  of 
tiiis  state,  its  system  of  laws,  or  legal  observances,  that  this 
right  of  superintendency  over,  or  power  of  removal  fi'om 
public  office,  except  in  instances  of  statutory  specification,  lias 
been  delegated  to  the  executive  head  of  the  government. 
That  such  authority  has  not  been  expressly  conferred  is 
unquestionable;  and  if  such  is  to  be  conceded,  it  must  be 
from  the  analogy  which  the  executive  office  bears  to  that  of 
the  English  monarch.     I  have  stated  the  reasons  for  my  con 


112  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

viction  that  such  similitude  is  absent.  If  such  analogy 
existed,  the  authority  to  remove  would  have  to  be  exercised 
according  to  the  English  mode,  and  it  has  already  been  shown 
that  such  mode  in  the  present  case  has  not  been  pursued. 
No  inquest  of  office  has  been  held,  and  without  such  procedure 
no  English  sovereign  could  have  removed  au  offending 
incumbent.  But  suppose  the  proceedings  in  the  present 
instance  had  been  squared  to  this  common  law  pattern.  In 
such  event  a  county  sheriff,  virtute  ojicii,  or  commissioners 
under  a  special  authority  from  the  governor,  would  have  con- 
voked a  jury  to  make  inquisition.  Before  such  jury  the 
party  charged  with  malfeasance  could  not  have  been  heard  ; 
and  upon  the  ex  parte  finding  of  such  tribunal,  the  governor 
would,  as  it  is  claimed,  have  been  empowered  to  oust  the 
incumbent  and  seize  the  office,  and  the  sole  remedy  of  such 
evicted  incumbent  would  have  been  by  petition  to  the  execu- 
tive. It  does  not  seem  to  me  that  any  one  will  deny  that 
such  a  procedure  would  be  in  strange  antagonism  with  all 
the  other  parts  of  our  frame  of  laws.  Its  existence  could 
not  be  palliated  by  any  of  those  theoretical  reasons  which 
apply  to  the  possession  of  this  power  by  the  English  monarch. 
Unlike  the  precedent  of  the  common  law,  the  executive 
would  proceed  to  remove  an  office  holder  whose  tenure,  like 
his  own,  was  derived  from  the  will  of  the  people.  Such  a 
course  is  inconsisteut  with  the  fundamental  idea  upon  which 
is  founded  the  whole  structure  of  our  political  institutions,, 
which  is  that  the  power  of  each  organ  of  the  government  is 
definite,  and  that  the  residuum  of  power  remains  in  the 
hands  of  the  mass  of  the  community.  Such  a  theory  entirely 
repels  the  doctrine  that  the  chief  executive  has  any  power  to 
remove  a  subordinate  whose  title  stands  on  the  same  level  as 
his  own,  unless  such  power  of  removal  is  expressly  or  by 
necessary  implication,  conferred  by  the  law  of  our  political 
eystem.  It  is  believed  that  these  inquisitions  to  inquire  as  to 
forfeitures  are  utterly  unknown  to  the  laws  and  usages  of 
this  country.  Such  a  process  has  never  certainly  been  heard 
of  in  this  state,  nor  has  any  precedent  for  the  use  of  such 


FEBRUARY  TERM,  1873.  113 

State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

>remedy  been  ti'aced  in  the  legal  forms  of  any  state  in  this 
Union.  Such  procedure  has  never  been  sustained  by  any 
American  court,  and  the  subject  does  not  appear  to  have 
been  ever  discussed  in  any  of  our  own  courts,  from  the  reason 
that  until  the  present  occasion,  the  attempt  to  evict  from 
office  by  a  supposed  analogy  to  this  mode  of  proceeding,  has 
never  been  made.  The  use  of  such  a  procedure  is  condemned 
gravissimo  judicio  taciturnitatis.  But  again,  the  function  to 
declare  an  office  forfeited  from  malfeasance,  is  obviously 
judicial  in  its  character,  and  this  leads  to  the  second  inquiry, 
Arhether  such  a  function  belongs  to  the  governor  of  this  state? 

It  has  already  appeared  that  the  authority  to  adjudge  as  to 
,  tli-e  forfeiture  of  office  did  not  belong  to  the  British  crown — 
the  king  could  not  seize  the  office  without  inquest  of  office 
found  in  his  favor,  aad  could  not  recall  his  letters  patent 
except  upon  a  judgment  to  that  effect  by  one  of  the  regular 
courts. 

The  question  therefore  is,  whether  the  prerogative  of  the 
governor  of  this  state,  in  this  respect,  overtops  that  of  the 
British  sovereign  ?  If  it  has  this  reach,  of  course  the  power 
must  be  derived  from  the  constitution  of  the  state. 

But  the  framework  of  the  government  of  this  state  has 
been  too  carefully  constructed  to  leave  so  important  a  matter 
as  this  in  any  doubt,  or  subject  to  any  uncertainty.  Its 
different  departments  have  been  nicely  adjusted,  and  the 
boundaries  of  their  action  have  been  accurately  and  plainly 
set  and  established.  And  in  no  part  of  the  instrument  is  the 
line  of  division  between  the  respective  branches  more  clearly 
marked  than  between  the  powers  of  the  executive  and  those 
of  the  judiciary. 

By  Article  III,  the  constitution  declares  :  "  The  powers  of 
the  government  shall  be  divided  into  three  distinct  depart- 
ments— the  legislative,  executive  and  judicial;  and  no  person 
or  persons  belonging  to  or  constituting  one  of  these  depart- 
ments shall  exercise  any  of  the  powers  properly  belonging  to 
•either  of  the  others,  except  as  herein  expressly  provided." 

The  Vth  Article  appertains  specially  to  the  executive  office. 


114  NEW  JERSEY  SUPREME  COURT. 

Stale,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

Its  provisions  are  perfectly  clear  and  explicit.  It  declares 
that  the  executive  power  shall  be  vested  in  the  governor  j 
that  he  shall  take  care  that  the  laws  be  faithfully  executed, 
and  grant,  under  the  great  seal  of  the  state,  commissions  to- 
all  such  officers  as  shall  require  to  be  commissioned ;  that  he- 
shall  be  a  member  of  the  court  of  pardons,  and  may  suspend 
the  collection  of  fines  and  forfeitures,  and  that  "  when  a 
vacancy  happens  during  the  recess  of  the  legislature,  in  any 
office  which  is  to  be  filled  by  the  governor  and  senate,  or  by 
the  legislature  in  joint  meeting,  the  governor  shall  fill  such 
vacancy,"  &c. 

These  are  all  the  powers  having  the  least  bearing  on  the 
subject  under  consideration,  attached  by  the  organic  law  to- 
the  office  of  the  executive. 

By  Article  VI,  the  whole  judicial  power  is  placed  in  the 
courts. 

It  is  obvious,  therefore,  that  the  governor  of  this  state  is 
not  possessed  of  a  particle  of  judicial  capacity.  I  cannot  see 
that  a  single  one  of  the  powers  conferred  upon  this  high, 
office  even  borders  upon  such  authority.  It  is  true  that  he  is- 
empowered  to  fill  certain  vacancies,  and  in  doing  such  acts  he 
must  decide  whether  or  not  such  vacancies  exist.  But  such 
decision  is  in  no  sense  a  judicial  act.  It  is  a  mere  assump- 
tion of  the  existence  of  a  certain  state  of  facts  on  which  to 
base  executive  action.  Such  assumptions,  or  determinations 
by  a  chief  executive,  when  they  relate  to  or  affect  private 
interests,  have  no  binding  force.  If  the  executive  should  fill 
an  office  on  the  conviction  that  the  incumbent  was  dead,  it  is 
presumed  that  in  the  mind  of  lawyers  there  would  prevail  no 
doubt  that  if  the  fact  of  death  had  not  occurred,  the  executive 
action  would  be  void.  An  estoppel  on  private  right  by 
executive  decision  is  not  likely  to  be  pleaded  by  any  well 
skilled  counsel.  I  think  there  is  no  reasonable  ground  on 
which  to  base  a  claim  for  the  existence  of  any  right  of  judi- 
cature in  the  governor  of  the  state. 

And  there  can  be  as  little  doubt  that  the  act  of  declaring 
that  the  offices  involved  in  this  case  had  been  forfeited,  was  a 
judicial  decision.     It  had  all  the  essential  elements  of  such 


FEBRUARY  TERM,  1873.  115 

State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

an  adjudication.  It  was  a  determination  of  the  fact  as  well 
as  the  law,  and  comprised  at  once  the  functions  of  the  jury 
and  the  judge,  and  it  related  to  a  right  of  property.  The 
questions  to  be  settled  were,  whether  the  officer  had  misbe- 
haved ;  and  that  was  an  issue  of  fact.  And  whether  such 
misbehavior  amounted  to  a  forfeiture  of  office;  and  that  was 
an  issue  of  law.  The  point  of  fact  required  the  introduction 
of  evidence,  and  for  this  purpose  the  governor  had  before 
him  the  record  of  the  conviction  of  these  defendants  in  a 
criminal  court.  Whether  such  record  would  be  competent 
for  the  purposes  for  which  it  was  used,  is  open  as  a  question 
of  pure  law  to  considerable  uncertainty,  the  usual  and  inveter- 
ate rule  being,  that  a  criminal  record  is  not  admissible  in  any 
suit  or  proceeding  relating  to  property  or  the  civil  rights  of 
persons.  But  it  is  enough  to  denote  that  here  was  presented 
a  rule  of  evidence  to  be  passed  upon.  In  all  its  parts  the 
proceeding  was  one  of  ordinary  judicature.  And  then,  too, 
after  the  ascertainment  of  the  fact,  it  became  necessary  to 
apply  the  rule  of  law.  The  result  was  an  announcement 
that  the  forfeiture  had  been  incurred.  And  this  clearly  was 
an  act  of  judicial  discretion.  Than  the  judgment  of  the 
judge,  there  is  no  other  legal  test  of  the  effect  a  certain  act  of 
misconduct  has  upon  the  right  to  office.  What  malfeasances 
will  work  a  forfeiture  is  no  part  of  the  lex  scripta.  There  is 
no  statute  upon  the  subject.  It  is  obvious  that  it  may  well 
be  that  some  convictions  in  a  criminal  court  may  not  produce 
such  a  result.  The  point  is  not  met  by  the  suggestion  that 
in  this  case  the  crime  committed  was  one  malum  in  se,  and 
made  highly  penal,  because  If  the  jurisdiction  is  vested  in  the 
executive  on  this  occasion,  it  belongs  to  him  in  all  cases  of 
official  misdemeanor.  It  is  not  too  much  to  say,  that  of  all 
the  cases  where  there  is  room  for  the  use  of  a  graduated 
standard  for  judicial  judgment,  the  class  of  cases  which  com- 
prises the  one  now  considered  is  the  most  prominent.  What 
jury  or  judge  has  ever  attempted  to  define  that  category  of 
offences  which  in  law  are  operative  to  deprive  the  wrong  doer 
of  a  public  office?     And  yet  such  was    the  question    upon 


116  NEW  JERSEY  SUPREME  COURT. 


State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 


which   the  executive  was  called  upon  to  pronounce.     These 
acts  were  judicial  in  the  most  rigorous  sense  of  the  term. 

And  there  are  other  noticeable  features  of  the  affair.  A 
matter  of  fact  was  to  be  investigated  and  settled,  and  yet  the 
testimony  of  witnesses  could  not  have  been  compelled,  and 
oaths  could  not  have  been  administered.  The  defendants, 
whose  rights  were  involved,  were  not  summoned,  had  no 
hearing,  and  were  condemned  in  their  absence.  Citizens  were 
deprived  of  valuable  civil  rights,  which  they  had  not  the 
least  opportunity  to  vindicate,  and  when  the  decree  of  depri- 
vation had  been  pronounced,  they  had  not  even  the  right  of 
appeal.  The  arbitrary  cliaracter  of  such  a  jurisdiction  would 
of  itself  be  sufficient  to  demonstrate  that  it  does  not  exist  by 
force  of  the  constitution  of  this  state.  The  power  of  adjudg- 
ing the  question  of  the  forfeiture  of  office  is  the  capacity  of 
a  judge,  and  does  not  in  any  degree  appertain  to  the  executive 
authority. 

It  cannot  fail  to  have  been  perceived  that  the  question  dis- 
cussed relates  merely  to  the  matter  of  jurisdiction.  Tiiat  an 
officer  who  has  made  use  of  the  opportunity  which  his 
position  afforded  to  perpetrate  a  fraud  upon  the  public  should 
be  summarily  cashiered,  is  a  proposition  entitled  to  universal 
assent.  But  the  result  to  which  I  have  arrived  is,  that  the 
finding  of  the  fact  of  misconduct  and  the  graduation  of  the 
punishment  are  judicial,  and  not,  by  virtue  of  our  system  of 
laws,  executive  functions.  And  I  think,  upon  reflection, 
there  will  be  few  minds  that  will  deny  the  propriety  of  the 
establishment  of  this  power  in  a  judicial  depositary.  Its 
effect  is  to  put  the  rights  of  the  citizen  under  the  safeguard 
of  the  ordinary  tribunals,  and  to  surround  tliem  with  the 
protection  of  those  modes  of  proceeding,  trial  and  supervision 
which  are  the  best,  and,  perhaps,  only  guarantees  against 
error  and  injustice.  To  have  left  such  cognizance  to  the 
executive  branch  of  the  government  would  have  been  to 
make  these  valuable  interests  to  be  dependent  on  the  conclu- 
sions of  a  single  mind,  unassisted  by  the  usual  methods  for 
the  elucidation  of  truth,  the  responsibility  of  decision  being 


FEBRUARY  TERM,  1873.  117 

State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

unrelieved  by  the  consciousness  that  if  the  conchision  should 
be  incorrect,  the  error  could  be  corrected  by  some  supervisory 
tribunal.  Every  proceeding  to  remove  an  officer  for  official 
misconduct  or  neglect  is  essentially  and  thoroughly  a  judicial 
proceeding,  and  has  consequently,  and  with  the  utmost  pro- 
priety, been  confided  to  that  branch  of  the  state  government. 

Nor  in  the  frame  of  the  state  constitution  is  thei-e  wanting 
an  organ  appropriate  to  the  exercise  of  this  jurisdiction.  I 
think  the  authority  in  question  is  vested  in  the  court  for  the 
trial  of  impeachments.  By  section  first  of  Article  VI,  which 
affects  a  distribution  of  the  judicial  power,  a  portion  of  it  is 
vested  in  this  tribunal.  Its  constitution  is  defined  by  section 
third,  the  right  to  impeach  being  given  to  the  assembly,  and 
that  of  trial  to  the  senate. 

The  jurisdiction  of  this  important  court  is  not,  in  express 
terms,  defined.  But  I  think  it  clear  that  its  cognizance  is 
confined  to  the  misconduct  of  state  officials.  In  England,  as 
is  well  known,  the  jurisdiction  of  parliament,  in  this  respect, 
is  much  more  extensive.  It  is  said  that  in  that  kingdom 
all  the  king's  subjects  are  impeachable  in  parliament.  In 
practice,  however,  this  kind  of  prosecution  has  usually  been 
confined  to  that  class  of  misdeeds  which  are  particularly 
injurious  by  the  abuse  of  important  offices  of  public  trust. 
But  such  an  extent  of  jurisdiction  in  this  court  would  be 
incompatible  with  the  most  cherished  notions  usually  preva- 
lent in  this  country,  with  respect  to  the  safeguards  necessary 
to  the  protection  of  persons  and  property.  And  that  the 
scope  of  the  jurisdiction  of  the  court  of  impeachments,  in 
this  state,  is  much  more  limited  than  this,  and  is  restricted 
to  persons  holding  office  under  the  state,  is  convincingly 
manifest  from  that  provision  of  the  constitution  which 
declares  that  the  judgment,  in  such  cases,  "shall  not  extend 
further  than  to  a  removal  from  office,  and  to  a  disqualification 
to  hold  and  enjoy  any  office  of  honor,  profit,  or  trust  under 
this  state."  Thus,  by  imperative  implication,  the  limits  of 
jurisdiction  are  restricted  to  the  offences  of  this  particular 
•class  of  persons. 


118  NEW  JERSEY  SUPREME  COURT. 

State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

The  only  remaining  question  therefore  is,  whether  the 
oflRce  holders  now  involved  in  this  controversy  belong,  in  tlie 
constitutional  sense,  to  this  class  of  state  officers  of  whose 
misdeeds  this  court  of  impeachments  takes  cognizance.  The 
pertinent  provision  of  the  constitution  is  in  these  words,  viz. : 
"The  governor,  and  all  other  civil  officers  under  this  state, 
shall  be  liable  to  impeachment  for  misdemeanor  in  office, 
during  their  continuance  in  office,  and  for  two  years  there- 
after." The  present  officials  are  state  officers,  and  I  have 
failed  to  see  how  they  are  to  be  excluded  from  the  general 
description  of  the  subjects  of  impeachment  just  quoted. 
The  generality  of  the  language,  so  as  to  comprise  the  whole 
class  of  state  officers,  ap|)ears  to  have  been  designed.  In 
other  parts,  where  the  intention  was  t'o  restrict  the  effect  of  a 
clause  to  constitutional  officers,  the  language  employed  is 
aptly  limited.  If  this  comprehensive  designation  of  the 
objects  of  the  cognizance  of  this  court  is  not  to  be  fully 
effectuated,  but  is  to  be  confined  to  certain  classes  of  officers^ 
where  are  the  limits  to  be  set?  If  it  does  not  take  in  all 
state  officers,  which  are  to  be  embraced  and  which  excluded? 
The  whole  matter  would  be  quite  arbitrary.  If  the  executive 
can  try  and  pronounce  upon  the  delinquency  of  the  present 
officials,  the  extent  of  his  power  would  seem  entirely  indefi- 
nite and  precarious^  and  no  reason  is  perceived  why  it  would 
not  cover  the  whole  field  of  misbehavior  by  these  public 
agents.  By  force  of  such  a  construction  of  the  authority  of 
the  governor,  the  functions  of  the  court  of  impeachments 
would  be  substantially  superseded. 

From  these  considerations  I  have  come  to  the  conclusion 
that  these  defendants  were  impeachable  for  their  alleged  official 
misdeeds,  and  that  it  would  have  been  competent  for  the 
court  of  impeachments  to  remove  them  from  their  i)0Sts.  A 
vacancy  in  these  offices  would  have  thus  been  created,  and,  in 
my  estimation,  this  cannot  be  effected  by  any  other  power  in 
the  state. 

The  only  adjudication  which  has  come  under  my  notice,, 
which  has  much  relevancy  to  the  subject  under  discussion,  is 


FEBRUARY  TERM,  1873.  im 


State,  ex  rel.  Police  Com'rs  of  Jersey  City,  v.  Pritchard  et  al. 

that  of  the  Court  of  Appeals  in  Kentucky,  in  the  case  of 
Page  v.  Hardin,  reported  in  8  B.  Monroe  6-18.  The  contro- 
versy related  to  the  office  of  secretary  of  state.  It  appeared 
that  the  governor  had  adjudged  that  the  secretary,  "  by  his 
failure,  willful  neglect  and  refusal  to  reside  at  the  seat  of  gov- 
ernment and  perform  the  duties  of  secretary,"  had  abandoned 
his  office,  and  that  the  same  had  become  vacant,  and  there- 
upon had  appointed  a  successor.  The  decision  of  the  court 
was  that  these  proceedings  were  unwarranted  ;  that  the  secre- 
tary was  not  removable,  either  at  the  pleasure  of  the  governor 
or  on  his  judgment,  for  a  misbehavior  in  office,  and  that  in- 
such  cases  the  jurisdiction  resided  in  the  court  of  impeach- 
ments. The  opinion  read  in  the  case  exhibits  much  thought, 
as  well  as  clearness  and  force  of  argument,  and  in  its  general 
tendency  and  conclusion  sustains  the  views  already  expressed. 
In  consequence  of  my  high  respect  for  the  opinion  of  his 
excellency  the  governor,  and  of  that  of  his  legal  adviser,  I 
approached  the  result  to  which  I  arrived  with  hesitation,  and 
at  first,  with  a  feeling  of  diffidence  as  to  the  correctness  of 
my  deductions.  The  proposition  presented  for  solution  was 
novel,  and  the  executive  action  was  obviously  based  on 
motives  of  justice  and  consideration  of  utility.  A  pressing 
evil  seemed  to  call  for  an  immediate  remedy,  and  the  mistake 
was  that  an  erroneous  one  was  adopted.  It  was  a  mere  mis- 
take of  form,  and  the  mistake  leaned  to  the  side  of  right. 
Full  reflection,  however,  has  removed  all  doubt  from  my 
mind,  and  in  the  discharge  of  my  duty,  I  am  bound  to  say 
that  the  executive  act  in  question  was  not  authorized  by  the 
law  of  this  state. 

The  defendants  are  entitled  to  judgment. 

CiTKD  in  Attorney-General  v.  Delaware  and  Bound  Brook  JR.  R.  Co.,  9 
Vr.  282. 


120  NEW  JERSEY  SUPREME  COURT. 


Mayor  and  Alderman  of  Jersey  City  ads.  Fitzpatrick. 


THE  MAYOR  AND  ALDERMEN  OF  JERSEY  CITY  Ana.  ^NEAS 
FITZPATRICK. 

1.  When  a  city  charter  makes  payment  or  a  tender  of  payment  of  dam» 
ages  assessed,  a  prerequisite  to  the  acquisition  of  title  in  lands  taken 
for  a  street,  the  acquiescence  of  the  land  owner  in  the  entry  of  the 
city  upon  such  lands,  and  a  demand  of  such  damages,  is  not  a  waiver 
of  the  prerequisite  of  payment  so  as  to  vest  the  title  in  the  city, 

2.  The  waiver  of  conditions  precedent  must  be  strictly  proved;  contra  as 
to  conditions  subsequent. 

3.  If  the  land  owner  acquiesced  in  the  taking  the  lands  and  the  making 
of  improvements  thereon,  though  no  legal  title  will  pass,  there  may 
be  relief  in  equity. 

This  was  an  action  of  ejeotment. 

The  defendants  claimed  title  under  the  plaintiff,  their  con- 
tention being  that  they  had  acquired  the  fee  in  the  premises 
by  force  of  their  charter,  having  taken  the  land  for  a  public 
street. 

The  material  facts  in  evidence  were  as  follows : 

In  1867,  the  corporate  authorities  of  the  city  of  Bergen 
took  the  requisite  steps  to  extend  Jackson  avenue  over  the 
land  in  question.  These  proceedings  were  regular,  and  an 
assessment  of  the  plaintiff's  damages  being  duly  made  in  July, 
1868,  the  same  were  confirmed  by  the  board  of  aldermen, 
and  the  extension  was  declared  to  be  a  public  street.  Subse- 
quently the  board  passed  a  resolution  directing  the  treasurer 
to  pay  the  awards  in  question.  This  resolution  was  after- 
wards reconsidered  and  rescinded.  In  1869  a  resolution  was 
passed  to  pay  one  of  the  owners  of  land  along  the  line  of 
extension  his  award. 

In  1868  the  construction  of  a  public  sewer  was  commenced 
through  this  part  of  Jackson  avenue,  which  was  completed  in 
the  spring  of  1870. 

Since  the  summer  of  1868,  the  premises  had  been  used  as 
a,  public  street. 

It  was  shown  that  the  plaintiff  knew  of  the  application  to 


FEBRUARY  TERM,  1873.  121 


Mayor  and  Aldermen  of  Jersey  City  ads.  Fitzpatrick. 


have  Jackson  avenue  extended,  and  examined  the  maps  show- 
ing the  award  of  damages  to  the  land  ownei'S,  and  was  aware 
that  the  sewer  was  being  built. 

In  the  year  1870  he  applied  to  the  city  authorities  for  tlie 
amount  awarded  him,  and  in  January,  1871,  presented  his 
petition,  reciting  that  his  lands  had  been  taken  and  were  now 
being  used  as  a  public  street,  and  claiming  payment  of  the 
damages  awarded  to  him. 

Argued  at  November  Term,  1872,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Scuddee. 

Tor  the  plaintiff,  Jacob  Weart. 

For  the  defendants,  J.  Dixon. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  defendants  set  up  that 
they  have  acquired  from  the  plaintiff  a  legal  title  to  the 
premises  in  dispute.  It  was,  at  the  trial,  satisfactorily  shown 
that  the  proceedings  requisite  under  their  charter  to  give  the 
city  the  fee  in  the  property  for  the  purposes  of  a  public 
street,  had  been  taken  up  to  the  point  of  a  payment  of  the 
damages,  which  had  been  awarded  to  the  plaintiff.  This  act 
of  payment,  it  is  admitted,  has  not  been  performed;  and  the 
only  substantial  question  which  has  been  raised,  is  whether 
such  act  has  not  been  dispensed  with  by  the  plaintiff  himself. 
That  the  statute  regulating  these  proceedings  requires  pay- 
ment of  these  damages,  as  a  prerequisite  to  the  vesting  of  the 
title  in  the  city,  is  incontrovertibly  clear.  This  is  the  pro- 
vision in  question,  viz. :  "  That  upon  completing  the  report 
aforesaid,  of  the  commissioners  of  assessment,  assessing  the 
value  of  the  lands  so  taken,  and  the  damages  thereby,  the 
city  treasurer  shall  tender  and  pay  to  the  owner  of  said 
lands,  if  a  resident  of  the  city,  the  amount  of  such  assess- 
ment due  him ;  but  if  such  owner  is  not  a  resident  of  the 
said  city,  or  upon  inquiry  he  cannot  be  found  therein,  or  is  a 


122  NEW  JERSEY  SUPREME  COURT. 

Mayor  and  Aldermen  of  Jersey  City  ads.  Filzpatrick. 

lunatic  or  idiot,  or  if  for  any  other  lawful  cause  lie  is  inca- 
pacitated to  receive  the  same,  or  if  such  owner  will  not 
accept  the  same  and  sign  a  proper  receipt  therefor  when  ten- 
dered, then  the  treasurer  shall  make  affidavit  of  such  facts, 
and  file  the  same  with  the  city  clSrk ;  and  the  board  of 
aldermen  shall,  after  inquiring  into  the  facts  of  the  case,  by 
resolution,  direct  the  amount  of.  such  assessment  to  be  placed 
either  in  the  city  treasury  or  some  bank,  for  the  use  of  the 
person  to  whom  it  may  be  due;  and  upon  filing  such  receipt 
of  the  owner,  or  the  passing  of  such  resolution  by  the  said 
board  of  aldermen,  the  said  lands  shall  be  vested  in  the  city 
of  Bergen,  and  the  city  officers  may  proceed  with  such  improve- 
ment, &c. 

In  view  of  the  plain  directions  of  this  enactment,  it  is  not 
necessary  to  advert  to  the  question  that  was  slightly  touched 
on  in  the  argument  before  the  court,  whetiier  the  legislature 
has  the  power  to  take  lands  for  public  streets  without 
compensation  being  first  made  to  the  owner.  For  present 
purposes,  it  is  enough  to  perceive,  in  the  language  just 
quoted,  a  manifest  intention  to  require  compensation  to  be 
made  to  the  land  owner.  By  force  of  this  law,  laud  for  a 
public  use  cannot  be  taken  in  invitum,  except  by  pre-payment 
or  a  tender  of  the  statutory  indemnity.  Consequently,  as  I 
Jiave  already  remarked,  the  only  inquiry  is  on  the  point  of 
the  alleged  waiver  by  the"^  plaintiff  of  this  prerequisite  of 
payment. 

The  circumstances  relied  on  are,  that  the  plaintiff  permit- 
ted the  defendants  to  take  the  premises  in  question  for  the 
public  use,  and  that  he  made  demands  upon  the  city  for  the 
moneys  awarded  to  him.  But  I  have  been  entirely  unable 
to  perceive  how  either  or  both  of  these  facts  can  have  the 
effect  of  passing  a  legal  title  to  the  lands  in  controversy.  It 
is  very  apparent  that  such  facts  may  give  the  defendants  a 
strong  claim  to  the  title  in  a  court  of  equity  upon  2)ayment 
of  the  consideration  awarded;  because,  before  that  tribunal 
the  transaction  can  be  enforced  in  the  mode  in  which  both 
parties  contemplated  its  performance,  tliat  is,  by  force  of  a 


FEBRUARY  TERM,  1873.  12a 

Mayor  and  Aldermen  of  Jersey  City  ads.  Fitzpatrick. 

decree  the  plaintiflF  would  get  his  money  and  the  defendants 
the  land.  But  here,  before  this  court  of  law,  the  defendants 
■claim  the  title  without  having  paid,  and  without  even  now 
tendering  the  money.  To  such  a  result,  I  do  not  see  the 
faintest  trace  of  a  consent  on  the  side  of  the  plaintiff.  He 
gave  no  consent  to  the  entry  upon  his  lands  by  the  defend- 
ants. By  the  doing  of  that  act,  they  became  mere  tres- 
passers. The  acquiescence  of  the  plaintiff  in  this  invasion 
cannot,  at  law,  affect  his  title,  because  he  had  the  right  to 
rely  on  the  statutory  condition,  that  before  such  title  could 
be  taken  from  him,  his  damages  must  be  paid.  An  infer- 
ence from  such  a  circumstance,  that  it  was  the  intention  of 
the  land  owner  to  let  the  title  of  his  property  pass  away 
from  him  before  a  receipt  of  his  consideration,  would  be 
most  unreasonable.  Nor  does  the  other  fact,  that  he 
demanded  the  damages  awarded,  evince  a  purpose  to  yield 
his  title  before  the  payment  of  the  moneys  due  to  him.  The 
statute  declared  that  the  payment  of  these  moneys  should  be  a 
condition  precedent  to  the  acquisition  of  title  by  the  city.  It  is 
not  apparent,  therefore,  how  a  demand  of  the  performance  of 
such  conditions  precedent  can  be  a  waiver  of  such  performance. 
It  is  to  be  borne  in  mind  that  there  is  a  marked  distinction 
in  the  legal  doctrine  of  waiver — when  applied  to  conditions 
tliat  are  to  create  an  estate,  and  when  applied  to  those  that 
are  to  destroy  an  estate.  In  tlie  former  class  of  cases,  where 
the  estate  is  to  arise  in  the  doing  of  a  certain  act,  there  is  no 
rigor  in  requiring  such  act  to  be  reasonably  performed ;  and 
the  consequence  is,  that  in  order  to  constitute  a  waiver  of 
the  performance  of  such  a  condition,  the  intention  to  give  up 
the  right  must  be  indisputable.  All  the  cases  cited  stand  on 
this  ground.  The  strongest  case  in  favor  of  the  doctrine 
contended  for  by  the  defence,  is  that  of  Leathe  v.  Bullard,  8 
Gray  54:5.  The  facts  were  these:  Tiie  grant  was  in  con- 
sideration of  certain  sums  to  be  paid  monthly  to  the  grantor 
and  his  wife  during  life,  and  the  deed  contained  a  condition 
that  it  was  not  to  take  effect  until  the  grantee  had  executed 
a  bond  with  sureties  to  secure  the  payments.     This  bond  was 


124  NEW  JERSEY  SUPREME  COURT. 

Mayor  and  Aldermen  of  Jersey  City  ads.  Fitzpatrick. 

never  executed,  but  the  grantee  was  put  into  possession,  and 
for  more  than  two  years  paid  the  monthly  installments,  and 
it  was  held  that  the  estate  had  vested  on  the  ground  of  an 
implied  waiver  of  the  condition.  It  will  be  at  once  per- 
ceived that  the  acts  of  the  grantor  in  this  case  were  of  such 
a  character  as  not  to  be  consistent  with  fair  dealing,  unless 
upon  the  assumption  that  he  had  dispensed  with  the  execu- 
tion of  the  condition  precedent.  The  money  that  he  had 
taken  did  not  belong  to  him,  if  the  estate  in  the  land  had  not 
passed  to  the  grantee;  the  unavoidable  inference,  therefore^ 
was  that  he  had  discharged  the  grantor  from  his  obligation 
to  give  the  bond.  This  case,  I  think,  is  reconcilable  with  the 
rule  that  a  waiver  of  the  execution  of  a  condition  precedent 
must,  in  point  of  intention,  he  clearly  made  ovft.  With 
respect  to  conditions  subsequent,  a  different  doctrine  prevails. 
Such  conditions  are  not  favored  in  law,  and  their  rigorous 
exaction  is  regarded  as  a  kind  of  summum  jus.  They  tend 
to  destroy  estates  already  vested,  and,  consequently,  the 
doctrine  of  waiver  when  applied  to  them,  receives  a  more 
liberal  and  equitable  interpretation.  The  cases  in  this  line 
would  mislead,  if  used  with  respect  to  conditions  precedent. 

In  the  facts  of  the  present  case,  I  do  not  discover  anything^ 
which  has  been  done  by  the  plaintiff,  which,  reasonably  inter- 
preted, can  be  considered  as  indication  of  an  intention  to  dis- 
pense with  the  payment  of  the  money  due  him  as  a  prerequisite 
to  the  vesting  of  the  title  to  the  premises  in  the  city  of  Bergen. 
The  consequence  is,  that  the  city  has  no  defence  to  this  actioo 
at  law.  Their  rights  are  equitable,  and  they  must  seek  another 
forum. 

The  rule  must  be  discharged. 

Cited  in  Jersey  City  v.  Fitzpatrick,  S  Stew.  Eq.  97 ;  Gardner  v.  Jersey  Gity,. 
5  Stew.  Eq.  586  ;  Mayor,  &c.,  of  Jersey  City,  v.  Gardner,  6  Slew.  Eq.  622. 


FEBRUARY  TERM,  1873.  125 


Cutler  ads.  State. 


CUTTEE  ADS.  STATE. 

1.  The  mere  taking  of  an  illegal  fee  by  a  justice  of  the  peace  or  other 
oflBcer  of  this  state,  will  not  constitute  a  criminal  act,  under  the 
twenty-eighth  section  of  the  act  for  the  punishment  of  crimes,  (Nix. 
Dig.  197,)  without  regard  to  the  intent  of  the  recipient. 

2.  The  legal  maxim,  icfnorantia  legis  neminem  excusat,  if  enforced, 
where  the  law  is  not  settled,  or  is  obscure,  and  where  the  guilty  inten 
tion,  being  a  necessary  constituent  of  the  particular  offence,  is  depend- 
ent on  a  knowledge  of  the  law,  would  be  misapplied. 

3.  The  defendant,  on  an  indictment  for  extortion  in  taking  fees  to  which 
he  was  not  entitled,  has  the  right  to  prove  to  the  jury  that  the  moneys 
whicli  it  is  charged  he  took  extorsively,  were  received  by  him  under 
a  mistake  as  to  his  legal  rights. 


Writ  of  error  to  the  Court  of  Oyer  and  Terminer  of  the 
county  of  Hudson. 

Argued  at  November  Term,  1872,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Scudder. 

For  the  plaintiff  in  error,  O.  E.  Schofield  and  I.  W.  Scudder^ 

For  the  state,  A.  Q.  Garretson. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  defendant  was  indicted 
for  extortion  in  taking  fees  to  which  he  was  not  entitled,  on  a 
criminal  complaint  before  him  as  a  justice  of  the  peace.  The 
defence  which  he  set  up,  and  which  was  overruled,  was  that 
he  had  taken  these  moneys  innocently,  and  under  a  belief 
that  by  force  of  the  statute  he  had  a  right  to  exact  them. 

This  subject  is  regulated  by  the  twenty-eighth  section  of 
the  act  for  the  punishment  of  crimes.  Nix.  Dig.  197.*  This 
clause  declares  that  no  justice  or  other  officer  of  this  state 
shall  receive  or  take  any  fee  or  reward,  to  execute  and  do  his 
duty  and  office,  but  such  as  is  or  shall  be  allowed  by  the  laws 

*Bev.,  p.  230,  2  23. 

Vol.  vii.  8 


126  NEW  JERSEY  SUPREME  COURT. 

Cutter  ads.  State. 

of  this  state,  and  that  "if  any  justice,  &c.,  shall  receive  or 
take,  by  color  of  his  office,  any  fee  or  reward  whatsoever,  not 
allowed  by  the  laws  of  this  state,  for  doing  his  office,  aud  be 
thereof  convicted,  he  shall  be  punished,"  &c. 

On  the  part  of  the  state  it  is  argued  that  this  statute  is  ex- 
plicit in  its  terms,  and  makes  the  mere  taking  of  an  illegal  fee 
a  criminal  act,  without  regard  to  the  intent  of  the  recipient. 
Such  undoubtedly  is  the  literal  force  of  the  language,  but  then, 
on  the  same  principle,  the  officer  would  be  guilty  if  he  took, 
by  mistake  or  inadvertence,  more  than  the  sum  coming  to  him. 
^or  would  the  statutory  terms,  if  taken  in  their  exact  signifi- 
■cation,  exclude  from  their  compass,  an  officer  who  might  be 
laboring  under  an  insane  delusion.  Manifestly  therefore,  the 
terms  of  this  section  are  subject  to  certain  practical  limitations. 
This  is  the  case  with  most  statutes  couched  in  comprehensive 
terms,  and  especially  with  those  which  modify  or  otherwise 
regulate  common  law  offences.  In  such  instances  the  old  and 
the  new  law  are  to  be  construed  together ;  and  the  former  will 
SDot  be  considered  to  be  abolished  except  so  far  as  the  design  to 
produce  such  effect  appears  to  be  clear.  In  morals  it  is  an 
«vil  mind  which  makes  the  offence,  and  this,  as  a  general  rule, 
has  been  at  the  I'oot  of  criminal  law.  The  consequence  is  that 
it  is  not  to  be  intended  that  this  principle  is  discarded,  merely 
on  account  of  the  generality  of  statutory  language.  It  is 
highly  reasonable  to  i)resume  that  the  law  makers  did  not  in- 
tend to  disgrace  or  to  punish  a  person  who  should  do  an  act 
under  the  belief  that  it  was  lawful  to  do  it.  And  it  is  this 
presumption  that  fully  justifies  the  statement  of  Mr.  Bishop, 
*'  that  a  statute  will  not  generally  make  an  act  criminal,  how- 
ever broad  may  be  its  language,  unless  the  offender's  intent 
concurred  with  his  act."     1  Crim.  Law,  §  80. 

This  doctrine  applies  with  full  force  to  the  present  case. 
If  the  magistrate  received  the  fees  in  question  without  any 
corrupt  intent,  and  under  the  conviction  that  they  were  law- 
fully his  due,  I  do  not  think  such  act  was  a  crime  by  force  of 
the  statute  above  recited. 


FEBRUARY  TERM,  1873.  127 


Cutter  ads.  State. 


But  it  is  further  argued  on  the  part  of  the  prosecution, 
•that  as  the  fees  to  which  the  justice  was  entitled  are  fixed  by- 
law, and  as  he  cannot  set  up,  as  an  excuse  for  his  conduct  his 
ignorance  of  the  law,  his  guilty  knowledge  is  undeniable. 
The  argument  goes  upon  the  legal  maxim  ignoraiitia  legis 
neminem  excusat.  But  this  rule,  in  its  application  to  the  law 
of  crimes,  is  subject,  as  it  is  sometimes  in  respect  to  civil 
•rights,  to  certain  important  exceptions.  Where  the  act  done 
is  malum  in  se,  or  where  the  law  which  has  been  infringed 
was  settled  and  plain,  the  maxim,  in  its  rigor,  will  be  applied ; 
but  where  the  law  is  not  settled,  or  is  obscure,  and  where  the 
guilty  intention,  being  a  necessary  constituent  of  the  particu- 
lar offence,  is  dependent  on  a  knowledge  of  the  law,  this  rule, 
if  enforced,  would  be  misapplied.  To  give  it  any  force  in 
such  instances,  would  be  to  turn  it  aside  from  its  rational  and 
original  purpose,  and  to  convert  it  into  an  instrument  of 
injustice.  The  judgments  of  the  courts  have  confined  it  to 
its  proper  sphere.  Whenever  a  special  mental  condition  con- 
stitutes a  part  of  the  ofi'ence  charged,  and  such  condition 
depends  on  the  question  whether  or  not  the  culprit  had  cer- 
tain knowledge  with  respect  to  matters  of  law,  in  every  such 
case  it  has  been  declared  that  the  subject  of  the  existence  of 
such  knowledge  is  open  to  inquiry,  as  a  fact  to  be  found  by 
tlie  jury.  This  doctrine  has  often  been  applied  to  the  offence 
of  larceny.  The  criminal  intent,  which  is  an  essential  part  of 
that  crime,  involves  a  knowledge  that  the  property  taken 
belongs  to  another ;  but  even  when  all  the  facts  are  known  to 
the  accused,  and  so  the  right  to  the  property  is  a  mere  ques- 
tion of  law,  still  he  will  make  good  his  defence  if  he  can 
^how,  in  a  satisfactory  manner,  that  being  under  a  misappre- 
hension as  to  his  legal  rights,  he  honestly  believed  the  articles 
in  question  to  be  his  own.  Rex  v.  Hall,  3  Carr.  &  P.  409; 
Heg.  V.  Reed,  Car.  &  Marsh.  306. 

The  adjudications  show  many  other  applications  of  the 
same  principle,  and  the  facts  of  some  of  such  cases  were  not 
substantially  dissimilar  from  those  embraced  in  the  present 
inquiry.     In  the  case  of  The  People  v.  Whaley,  6  Cow.  661, 


128  NEW  JERSEY  SUPREME  COURT. 

Cutter  ads.  State. 

a  justice  of  the  peace  had  been  indicted  for  taking  illegal 
fees,  and  the  court  held  that  the  motives  of  the  defendant^ 
whether  tli^y  showed  corruption  or  that  he  acted  through  a 
mistake  of  the  law,  were  a  proper  question  for  the  jury. 
The  case  in  The  Commonwealth  v.  Shed,  1  ^fass.  228,  was 
put  before  the  jury  on  the  same  ground.  This  was  likewise 
the  ground  of  decision  in  the  case  of  The  Commonwealth  v. 
Bradford,  9  Mete.  268,  the  charge  being  for  illegal  voting, 
and  it  being  declared  that  evidence  that  the  defendant  had 
consulted  counsel  as  to  his  right  of  suffrage,  and  had  acted 
pn  the  advice  thus  obtained,  was  admissible  in  his  favor. 
This  evidence  was  only  important  to  show  that  the  defendant 
in  infringing  the  statute  had  done  so  in  ignorance  of  the  rule 
of  law  upon  the  subject.  Many  other  cases,  resting  on  the 
same  basis,  might  be  cited ;  but  the  foregoing  are  sufficient  to 
mark  clearly  the  boundaries  delineated  by  the  courts  to  the 
general  rule,  that  ignorance  of  law  is  no  defence  where  the 
mandates  of  a  statute  have  been  disregarded  or  a  crime  has 
been  perpetrated. 

That  the  present  case  falls  within  the  exceptions  to  this 
general  rule,  appears  to  me  to  be  plain.  There  can  be  no 
doubt  that  an  opinion  very  generally  prevailed  that  magis- 
trates had  the  right  to  exact  the  fees  which  were  received  by 
this  defendant,  and  that  they  could  be  legally  taken  under 
similar  circumstances.  The  prevalence  of  such  an  opinion 
could  not,  it  is  true,  legalize  the  act  of  taking  s*ch  fees ;  but 
its  existence  might  tend  to  show  that  the  defendant,  when  he 
did  the  act  with  which  he  stands  charged,  was  not  conscious 
of  doing  anything  wrong.  If  a  justice  of  the  peace,  being 
called  upon  to  construe  a  statute  with  respect  to  the  fees 
coming  to  himself,  should,  exercising  due  care,  form  an 
honest  judgment  as  to  his  dues,  and  should  act  upon  such 
judgment,  it  would  seem  palpably  unjust,  and  therefore 
inconsistent  with  the  ordinary  grounds  of  judicial  action,  to 
hold  such  conduct  criminal  if  it  should  happen  that  a  higher 
tribunal  should  dissent  from  the  view  thus  taken,  and  should 
decide  that  the  statute  was  not  susceptible  of  the  interpreta- 


FEBRUARY  TERM,  1873.  129 

Olterson  et  al.  v.  Hofford  et  al. 

tion  put  upon  it.  I  think  tiie  defendant  had  the  right  in  this 
•case  to  prove  to  the  jury  that  the  moneys,  which  it  is  charged 
he  took  extorsively,  were  received  by  him  under  a  mistake  as 
to  his  legal  rights,  and  that  as  such  evidence  being  offered  by 
him  was  overruled,  the  judgment  on  that  account  must  be 
reversed. 

Cited  in  State  v.  Ealated,  10  Vr.  402 ;  Hoisted  v.  State,  12  Vr.  552. 


OTTEESON  ET  AL.  v.  HOFFORD  ET  AL. 

When  the  reccrd  of  a  will,  together  with  the  affidavit  at  the  time  of 
probate,  is  offered  in  evidence,  it  is  competent  for  the  opposing  party 
to  show  statements  made  out  of  court  by  one  of  the  subscribing  wit- 
nesses who  had  joined  in  such  affidavit,  in  order  to  contradict  the 
statements  of  such  affidavit  as  to  the  due  execution  of  the  will. 
Such  evidence  standing  alone  will  not  invalidate  the  instrument. 


On  rule  to  show  cause  why  a  new  trial  should  not  be  granted. 

Argued  at  November  Term,  1872,  before  Beaslet,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Scudder. 

For  the  plaintiff,  J.  G.  Shipman. 

For  the  defendant,  P.  L,  Voorhees  and  A.  Browning. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  This  is  an  action  of  ejectment, 
both  parties  claiming  title  under  the  same  ancestor;  the  plain- 
tiffin  right  of  his  wife  as  heir-at-law,  the  defendant  by  force 
of  a  will. 

After  the  plaintiff  had  proved  the  pedigree  on  which  he 
relied,  the  defendant  introduced  a  certified  copy  of  the  record 
of  the  will  in  question.  Upon  an  inspection  of  this  copy,  it 
appears  that  there  were  three  testamentary  witnesses,  all  of 
whom  had  been  sworn  in  making  probate.  One  of  these  wit- 
nesses was  produced  at  the  trial  by  the  plaintiff,  and  testified 


130  NEW  JERSEY  SUPREME  COURT. 

Otterson  et  al.  v.  Hofford  et  al. 

to  the  effect  that  the  will  had  not  been  legally  executed. 
Another  of  them  being  called  by  the  defendant  controverted 
the  statements  of  the  former,  and  made  out  a  legal  execution 
of  the  instrument.  The  third  subscribing  witness  was  not 
called  on  either  side. 

In  this  condition  of  the  case  the  plaintiff's  counsel  offered 
to  show  that  the  third  witness,  who  had  not  been  sworn,  had 
made  sundry  statements  inconsistent  with  the  fact  of  the  due 
execution  of  the  will  in  his  presence.  This  offer  having  been 
overruled  by  the  court,  constitutes  one  of  the  grounds  on 
which  a  new  trial  is  asked. 

To  fully  estimate  the  force  of  the  plaintiff's  position,  the 
exact  situation  of  the  parties  with  respect  to  the  evidence 
before  the  court  at  the  time  of  this  offer,  is  to  be  kept  clearly 
in  view.  The  defendant  was  standing  before  the  jury,  in 
part,  on  the  affidavit  of  this  absent  witness.  That  testimony, 
if  accepted  as  true,  proved  the  point  in  dispute,  which  was, 
whether  the  will  had  been  executed  according  to  the  statute. 
The  defendant  did  not  call  the  witness,  but  relied  on  his  ex 
parte  affidavit,  as  it  appeared  on  the  record  made  up  by  the 
surrogate  in  compliance  with  the  act.  The  plaintiff  therefore 
had  no  opportunity  to  cross-examine  this  witness,  whose  tes- 
timony was  so  important.  If  he  had  been  called  by  the 
plaintiff  himself  and  had  confirmed  his  affidavit,  his  state- 
ments inconsistent  with  his  recorded  oath,  could  not  have  been 
shown.  The  plaintiff  would  not  have  been  permitted  to- 
break  down  his  own  witness.  The  question  is,  whether  by 
the  operation  of  the  statute  which  directs  the  surrogates  to 
record  wills,  "  together  with  the  proofs  thereof,"  and  whiclv 
declares  that  certified  transcripts  of  such  records  shall  be 
received  in  evidence,  the  party  against  whom  such  transcript 
may  be  offered  is  deprived  not  only  of  the  opportunity  of 
cross-examination,  but  also  of  the  right  to  show  statements 
made  by  the  testamentary  witnesses  at  variance  with  their 
oaths  at  the  time  of  probate. 

To  the  extent  of  the  legal  principle  involved  in  this 
inquiry,  the  decisions  heretofore  made  by  this  court  appear  to 


FEBRUARY  TERM,  1873.  131 


Otterson  et  al.  v.  Hofford  et  al. 

be  conclusive  on  this  point.  To  this  class  belongs  the  judg- 
ment in  the  case  of  The  Reformed  Dutch  Church  v.  Ten 
JEyck,  1  Dutcher  40.  One  of  the  objections  to  the  proceedings 
in  that  instance  was,  that  the  written  statements  of  a  sub- 
scribing witness  to  a  deed,  who  was  dead,  in  disparagement  of 
the  evidence  afforded  by  his  signature,  had  been  admitted, 
but  such  objection  was  not  allowed  to  pj:evail.  "  Jt  would 
seem,"  says  the  opinion  of  Chief  Justice  Green,  "  from  the 
necessity  of  the  case,  and  as  affording  the  best  substitute  for 
the  opportunity  of  cross-examination,  which  has  been  lost  by 
the  death  of  the  witness,  the  evide'nce  ought  to  be  received 
in  support  of  a  charge  of  fraud  or  forgery.  But  standing 
alone,  unsupported  by  other  evidence,  it  is  entitled  to  but 
little  weight,  and  should  never  be  suffered  to  defeat  the  title." 
This  point  passed  again  under  consideration  in  the  case  of 
Boylan  ads.  Meeker,  4r  Dutcher  294,  and  the  same  view  was 
taken  with  respect  to  it.  The  principle  adopted  is  thus 
expressed.  It  is  from  the  opinion  of  Chief  Justice  Whelp- 
ley  that  I  quote  :  "  Chief  Justice  Ewing,  in  the  course  of  an 
elaborate  judgment  in  Patterson  v.  Tucker,  holds  that  the 
foundation  of  the  rule  permitting  proof  of  the  handwriting 
of  the  subscribing  witnesses  to  stand  as  proof  of  the  execu- 
tion of  the  instrument  in  certain  cases  is,  that  the  attestation 
of  the  witness  is  a  declaration  by  him  that  the  instrument 
was  duly  executed  in  his  presence,  as  the  attestation  clause 
usually  declares.  If  that  be  the  case,  I  think  it  is  quite  clear 
whenever  the  attestation  is  offered  in  evidence  as  proof  of  the 
execution  of  the  instrument,  any  evidence  wliich  would  have 
been  competent  against  the  witness,  had  he  been  sworn,  will 
be  competent  to  overthrow  tlie  force  of  his  declaration  offered 
in  evidence  instead  of  his  testimony."  The  case  of  Losee  v. 
Losee,  2  Hill  609,  stands  on  the  same  ground,  it  being  there 
held  that  where  the  plaintiff  relied  on  the  proof  of  the  hand- 
writing of  a  deceased  subscribing  witness,  the  defendant 
might  give  evidence  of  his  bad  character  for  the  purpose  of 
rebutting  the  presumption  that  the  instrument,  to  which  his 
name  was  attached,  had  been  duly  executed.     The  doctrine 


132  NEW  JERSEY  SUPREME  COURT. 

Olterson  et  al.  v.  Hofford  et  al. 

embodied  in  these  decisions  applies,  a  fortiori,  to  the  present 
case.  If  the  accident  of  the  deatli  of  the  subscribing  witness 
will  not  take  away  the  right  of  the  opposing  party  to  prove 
the  bad  character  of  such  witness,  or  statements  made  by  him 
inconsistent  with  the  influences  necessarily  arising  from  his 
signature,  much  less  will  such  incapacity  arise  from  the 
failure  of  the  party  claiming  under  the  instrument  in  dispute, 
to  call  such  witness  to  the  stand.  The  decisions  which  have 
denied  the  right  to  impeach,  by  the  modes  in  question,  the 
testimony  of  the  subscribing  witness,  were  so  decided  on  the 
ground  that  the  proof  of  the  signature  of  the  witness  did  not 
import  an  attestation  on  his  part  that  the  instrument  had 
been  duly  executed  in  his  presence.  This  was  the  reasoning 
in  Stohart  v.  Dryden,  1  M.  &  W.  615,  a  case  the  authority 
of  which  was  rejected  in  the  determinations  of  this  court 
already  referred  to.  But  even  this  repudiated  ground  of 
judgment  is  not  applicable  in  the  present  instance.  It  was 
the  affidavit  and  not  mere  proof  of  the  signature  of  the 
witness,  which  was  on  this  occasion  before  the  jury,  so  that 
there  is  no  question  as  to  the  meaning  or  effect  of  the  evidence. 
The  witness  had  testified,  as  appeared  on  the  record,  that  the 
will  had  been  legally  executed,  and  the  facts  making  out  such 
legality  had  been  stated  by  him.  The  defendant,  instead  of 
calling  the  witness,  relied  on  this  affidavit.  By  such  a  course 
can  he  deprive  his  adversary  of  all  chance  of  showing  the 
unreliability  of  such  witness  from  his  own  mouth  ?  Such  an 
option  would  be  greatly  inexpedient,  and  tend  to  manifest 
unfairness.  Suppose  the  case  of  a  will  fraudulently  obtained, 
the  witnesses  being  privy  to  the  fraud.  As  a  copy  of  the 
record  of  the  will  can  be  introduced,  and  thus  the  examina- 
tion of  the  witnesses  dispensed  with,  it  seems  one  of  the 
necessities  of  the  case,  in  the  pursuit  of  a  just  result,  to  admit 
evidence  of  variant  statements  made  out  of  court  by  such 
witnesses,  or  as  to  their  general  bad  character  for  truth. 
Such  testimony,  standing  alone,  would  not  invalidate  the 
instrument,  but,  when  supported  by  other  proofs,  ought  to  be 
received  as  a  compensation  for  the  loss  of  the  privilege  of 


FEBRUARY  TERM,  1873.  133 

Lewis  V.  Perkins  et  ux. 

•cross-examination,  and  in  order  to  impair  in  some  measure 
the  effect  of  proof  of  the  signature  in  connection  with  the 
clause  of  attestation.  The  statute,  making  copies  of  the 
records  of  wills  evidence,  was  not  designed  to  give  to  persons 
claiming  under  such  instruments  any  undue  advantage  when 
a  question  was  mooted  as  to  their  honest  or  legal  execution. 
The  intention  was  to  make  them  prima  facie  evidence  for  the 
sake  of  convenience.  But  when  such  record  is  produced, 
the  ordinary  principles  of  evidence  become  applicable,  one  of 
which  is,  that  the  statements  of  the  subscribing  witness  made 
out  of  court  which  do  not  coincide  with  his  affidavit  at  the 
time  of  probate,  or  with  the  import  of  the  attestation  clause, 
may  be  introduced  by  way  of  contradiction. 

The  evidence  in  question  I  think  ought  to  have  been 
admitted. 

The  other  objection  to  the  proceedings  has  been  examined, 
but  appears  to  me  so  manifestly  fallacious  that  I  have  not 
thought  it  necessary  to  discuss  it. 

On  the  ground  first  specified,  a  new  trial  should  be  granted. 


LEWIS  V.  PEEKLNS  AND  WIFE. 

In  a  suit  founded  on  a  contract  of  a  married  woman,  her  capability  to 
contract  must  be  shown  in  the  declaration  by  a  statement  of  the  neces- 
sary facts,* 

On  demurrer  to  declaration. 

Argued  at  November  Term,  1872,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Scudder. 

For  the  plaintiff,  J.  G.  Shipman. 

For  the  defendant,  M.  Wychoff. 

*See  Hinkion  v.  Williamson,  12  Vr.  35. 


134  NEW  JERSEY  SUPREME  COURT. 

Boyd  V.  King. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  This  suit  is  grounded  on  a 
contract  alleged  to  have  been  made  by  the  wife.  The  agree- 
ment thus  disclosed  is  set  forth  as  though  a  feme  covert,  with 
respect  to  the  power  to  make  contracts,  was  under  no  disability. 
The  contract  as  stated  in  this  pleading  is,  undoubtedly, 
invalid  by  the  rules  of  the  common  law.  All  the  counts  in 
this  particular  are  constructed  on  the  same  model.  And  the 
demurrer  is,  consequently,  general  to  the  whole  declaration. 

In  the  case  of  Eckert  v.  Meuter  et  ux.,  4  Vroom  266,  it  was 
decided  by  this  court  that  the  act  which  gives  the  right  of 
suit  at  law  against  a  married  woman  did  uon  enable  the  feme 
to  enter  into  any  contract  which  she  had  not,  before  the  pas- 
sage of  that  law,  been  authorized  to  make,  and  that  the  effect 
of  the  statute  was  to  make  her  equitable  engagements  suable 
at  law.  The  necessary  consequence  of  this  decision  is,  that  in 
displaying  a  cause  of  action  against  a.  feme  covert  in  a  court  of 
law,  it  is  necessary  to  show  the  circumstances  which  make  her 
contract  obligatory.  Her  general  condition  is  one  of  inca- 
pacity to  bind  herself  by  her  agreement.  The  particular  facts 
therefore  which  remove  such  disability  must  appear  in  order 
to  make  out  a  legal  cause  of  action.  A  caution  was  appended 
to  the  opinion  just  cited,  that  in  suits  under  the  statute  in 
question,  the  declaration  must  be  special.  In  this  case  that 
caution  has  been  disregarded,  and  the  demurrer  must  be  sus- 
tained. 

Cited  in  Wilson  v.  Herbert,  12  Vr.  454. 


BOYD  V.  KING. 

1.  The  attachment  act  does  not  appoint  the  mode  of  the  sheriff's  return 
of  the  writ,  and  consequently  his  certificate  that  he  has  duly  served  the 
process,  accompanied  by  an  inventory  and  appraisement,  constitutes, 
standing  alone  and  unexplained,  a  valid  service. 

2.  An  attachment  is  proper  whenever  the  claim  is  founded  in  contract 
and  special  bail,  as  of  course,  could  be  required  at  common  law. 


FEBRUARY  TERM,  1873.  135 


Boyd  V.  King. 


3.  Query — Can  the  interest  of  a  vendee  in  lands  under  an  agreement  to- 
purchase  be  attached  ? 

4.  The  sheriff's  return  in  this  case  construed. 


The  motion  was  to  quash  the  writ  of  attachment. 

The  following  was  the  return  of  the  sheriff  to  an  attachment 
against  the  defendant  as  a  non-resident  debtor :  "  By  virtue  of 
the  annexed  writ,  I  have  this  23d  March,  1871,  attached 
Benj'n  W.  King,  his  rights  and  credits,  moneys  and  effects, 
goods  and  chattels,  lauds  and  tenements,  and  the  following  is 
a  just  and  true  inventory  and  description  of  the  same,  to  wit,, 
the  right,  title  and  interest  of  Benj'n  W.  King  in  all  lands,  &c. 
*  *  *  Being  the  premises  which  Ruckman  agreed  to  con- 
vey to  Benjamin  W.  King  by  certain  articles  of  agreement, 
bearing  date  the  12th  day  of  May,  1868,  and  the  rights  and 
interests  of  the  said  Benj'n  W.  King  in  and  to  the  above 
described  property,  &c,     *     *     * 

"  Valued  at  $100. 

(Signed,)  "J.  L.  Van  Blarcom,  Sheriff. 

"A.  D.  Campbell, ^j^pmzser.'' 

Argued  at  November  Term,  1872,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Scudder. 

For  the  motion,  Wm.  L.  Dayton, 
The  plaintiff,  pro  se. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  first  ground  assigned  for 
quashing  these  proceedings  is,  that  the  return  of  the  sheriff  is 
insufficient. 

That  the  officer  does  not  show  in  his  return  a  compliance 
with  the  directions  of  the  statute  with  respect  to  the  mode  of 
executing  the  writ,  is  the  subject  of  this  exception.  It  cer- 
tainly cannot  be  denied  that  this  return  does  not  manifest,  in 
terms,  that  the  writ  has  been  executed  in  conformity  with  the- 


136         NEW  JERSEY  SUPREME  COURT. 

Boyd  V.  King. 

provisions  of  tlie  act.  The  certificate  of  the  officer  to  the 
-court  is  a  naked  statement  that  by  virtue  of  the  attachment 
he  has  attached  the  property  of  the  defendant,  and  to  this  is 
annexed  an  inventory  and  appraisement,  signed  by  himself 
and  an  appraiser.  The  manner  of  making  tiie  attachment 
does  not  therefore  appear,  and  the  facts  exhibited  in  the 
return,  are  consistent  with  neglects  on  the  part  of  the  officer 
of  several  acts,  which  by  the  statute  are  made  essential  to  the 
creation  of  a  lien  upon  the  property  of  the  defendant.  But 
the  presumption  of  law  is  in  favor  of  the  regularity  of  the 
procedure,  and  herein  lies  the  infirmity  of  this  first  exception 
taken  by  the  counsel  of  the  defendant.  To  render  the  return 
of  the  attachment  fatally  defective,  when  tliere  has  been  in 
substance  an  execution  of  the  process,  it  must  be  made  to 
appear  affirmatively  that  an  essential  act  has  been  omitted  to 
be  done.  When  there  is  no  clear  exhibition  of  such  omission 
it  cannot  be  inferred.  The  act  particularly  directs  how  the 
writ  is  to  be  levied,  but  it  does  not  require  any  special  mode 
of  return,  and  the  consequence  is  that  it  has  been  repeatedly 
held  in  this  court  that  the  sheriff's  certificate,  couched  in 
general  terms  that  he  has  duly  served  the  writ,  accompanied 
by  an  inventory  and  appraisement,  is,  standing  alone  and 
uncontradicted,  a  valid  service.  This  was  the  rule  adopted 
and  very  plainly  expressed  in  the  case  of  Thompson  v.  East- 
bum,  1  Harr.  100.  The  sheriff  in  that  instance  did  not 
show  that  in  making  his  levy  upon  the  property  he  had 
taken  all  the  several  steps  required  by  the  statute,  but  the 
proceeding  was  sustained,  and  the  court  said  :  "  If  the  sheriff 
should  return  as  follows  :  '  I  have  served  (or  executed)  tiie 
within  writ,  in  the  manner  directed  by  law,  this  day  of 

,  &c.,'  and  sign  his  name  thereto,  and  annex  an  inven- 
tory and  appraisement  of  the  property  attached,  signed  by 
himself  and  a  freeholder,  it  would  be  sufficient."  The  same 
rule  was  sanctioned,  and  the  same  course  of  practice  followed 
in  Morrell  v.  Buckley,  Spencer  669,  and  in  Castner  v.  Styer, 
3  Zah.  247.  The  principle  is,  that  when  the  return  shows 
in  substance  a  legal  service  of  the  writ,  there  is  a  legal  intend- 


FEBRUARY  TERM,  1873.  137 

Boyd  V.  King. 

ment  in  favor  of  the  legality  of  the  proceedings  of  the  sheriff 
in  all  other  particulars.  The  application  of  this  principle- 
explodes  the  first  of  the  exceptions  taken  in  this  case.  To 
avoid  misconstruction,  it  is  proper  to  remark  that  the  case  of 
Tomlinson  v.  Stiles,  reported  in  4  Dutcher  202,  and  in  5' 
Dutcher  426,  has  no  application  to  the  point  here  decided, 
because  in  that  case  it  appeared  affirmatively  by  the  return 
of  the  sheriff,  that  he  had  not  executed  his  writ  on  the  'par- 
ticular land  which  he  sold.  In  this  decision,  the  principle 
above  adopted  is  admitted  to  be  correct. 

The  second  objection  urged  against  the  proceedings  is^ 
that  the  interest  or  estate  of  the  defendant  in  the  lands  levied 
on  is  not  of  an  attachable  nature.  This  point  in  the  briefs 
of  counsel  is  argued  upon  the  assumption  that  this  interesfe 
of  the  defendant  in  the  premises  in  question  has  been  shown 
to  the  court  by  the  return  of  the  sheriff.  But  this  is  a  mistake. 
The  writ,  it  is  stated,  is  levied  on  certain  lands;  and  it  i& 
further  said  that  such  lands  are  those  embraced  in  a  certain 
article  of  agreement,  whereby  one  Ruckman  covenanted  to 
convey  them  to  the  defendant.  But  it  is  not,  nor  could  it 
properly  be  alleged  in  this  return,  that  all  the  estate  which 
the  defendant  has  in  this  property  arises  by  force  of  this 
article  of  agreement.  Nor  if  such  statement  were  before  the 
court  could  any  judicial  action  be  founded  on  the  ministerial 
offi-cer's  construction  of  this  instrument.  That  which  the 
Ftheriff  might  consider  an  agreement  to  convey,  might  be 
regarded  as  an  actual  conveyance.  But  the  return  does  not 
purport  to  be  a  levy  only  on  such  interest  as  the  defendant 
has  through  the  operation  of  this  contract,  but  such  contract 
is  referred  to  only  as  a  means  of  describing  the  property 
attached.  For  aught  that  appears,  the  defendant  may  have  a 
regular  deed  of  conveyance  for  these  premises,  and  may  be 
the  owner  in  fee.  If  the  naked  case  had  been  presented  of 
the  levy  of  an  attachment  on  the  interest  of  a  vendee  in  real 
estate,  by  virtue  of  an  agreement  to  convey  on  the  payment 
of  the  purchase  money,  I  should  have  had  little  doubt  that 
such  writ  ought  to  be  quashed.    Such  a  right  is  a  mere  equity^ 


138  NEW  JERSEY  SUPREME  COURT. 

Slocum  V.  Seymour. 

and  could  not  be  handled  at  law.  But  the  facts  before  the 
•court  do  not  present  this  question,  and  it  is  therefore  not 
necessary  to  decide  it.     This  second  objection  cannot  prevail. 

The  last  exception  to  the  proceedings  is,  that  tiie  claim  of 
the  plaintiff  was  not  of  such  a  nature  as  to  be  enforceable  by 
process  of  this  kind. 

The  claim  of  the  plaintiff  is  for  work  and  labor,  and  it  was 
suggested  that  as  the  amount  due  was  not  a  sum  fixed  by 
positive  agreement,  an  attachment  would  not  lie  to  enforce  it, 
on  the  ground  that  the  judgment  must  be  for  unliquidated 
damages.  But  this  matter  has  been  long  since  settled.  The 
test  as  to  what  claims  will  support  an  attachment  was  applied 
^nd  adopted  in  the  case  of  Jeffery  v.  Wooley,  5  Halst.  123, 
and  that  test  was,  that  such  process  was  proper  whenever  the 
cause  of  action  was  founded  on  a  contract,  and  was  of  such  a 
nature  as  to  enable  the  plaintiff,  as  of  course,  to  require 
special  bail. 

It  therefore  follows,  necessarily,  that  the  plaintiff's  case  is 
not  faulty  in  this  last  particular. 

The  motion  to  quash  should  be  overruled. 

Cited  in  Dodge  v.  Butler,  13  Vr.  370. 


HIRAM  SLOCUM  v.  ARTHUR  G.  SEYMOUR. 

1.  A  sale  of  standing  timber,  by  tbe  owner  of  the  freehold,  is  not  a  sale 
of  a  chattel  interest,  but  of  an  interest  in  lands,  and  is  not  controlled 
by  the  doctrine  of  warranty  of  title  in  sales  of  personal  property. 

2.  In  no  sense  can  trees,  the  natural  and  permanent  growth  of  the  soil, 
be  regarded  as  partaking  of  the  character  of  emblements  or  fruclus 
induslriales,  but  are  a  part  of  the  inheritance,  and  can  only  become 
personalty  by  actual  severance,  or  by  a  severance  in  contemplation  of 
law,  as  the  effect  of  a  proper  instrument  of  writing. 

3.  When  a  contract  comprehends  an  interest  in  trees  standing,  with  a 
right  in  the  vendee  to  sever  them,  the  subject  matter  is  then  an  inter- 
est in  land  within  the  statute  of  frauds. 


Error  to  the  Circuit  Court  of  the  county  of  Bergen. 


FEBRUARY  TERM,  1873.  139 


Slocum  V.  Seymour. 


Argued  at  November  Term,  1872,  before  Beasley,  Chief 
Justice,  and  Justices  Bedlb,  Daleimple  and  Scudder. 

For  the  plaintiff  in  error,  C.  H.  Voorhis. 

For  the  defendant,  E.  A.  S.  Man. 

The  opinion  of  the  court  was  delivered  by. 

Bedle,  J.  Slocum  conveyed  to  Seymour  by  an  ordinary 
deed  of  conveyance  dated  December  20th,  1860,  all  the  wood 
and  timber  upon  a  certain  tract  of  land,  with  the  right,  in 
the  vendee,  to  cut  and  remove  the  same  before  July  1st,  1862. 
The  deed  described  the  tract  by  metes  and  bounds,  and  as  the 
same  premises  conveyed  to  Slocum  by  Abram  W.  Haring 
and  wife,  by  deed  of  even  date  with  the  deed  to  Seymour. 
The  title  of  Slocum  to  a  part  of  the  tract  proved  defective, 
and  this  suit  is  brought  upon  an  alleged  implied  covenant  of 
title  in  the  plaintiff's  (Seymour's)  deed.  There  is  no  express 
covenant  of  title,  but  there  is  a  covenant  against  the  acts  of 
the  grantor.  The  charge  was  based  upon  the  assumption 
that  the  parties  had  treated  this  as  a  sale  of  personal  property, 
aud  that  a  warranty  of  title  would  be  implied  by  the  law. 
Although  there  is  great  diversity  in  the  cases,  whether  a  sale 
of  standing  timber  by  the  owner  of  the  freehold  is  of  a 
chattel  interest,  I  am  satisfied  that  such  a  sale  is  of  an  interest 
in  lands,  and  not  controlled  by  the  doctrine  of  warranty  of 
title  in  sales  of  personal  property.  In  no  sense  can  trees,  the 
natural  and  permanent  growth  of  the  soil,  be  regarded  as 
partaking  of  the  character  of  emblements,  or  frudus  indus- 
triales,  but  are  a  part  of  the  inheritance,  and  can  only  become 
personalty  by  actual  severance,  or  by  a  severance  in  contem- 
plation of  law  as  the  effect  of  a  proper  instrument  of  writing. 
It  may  be  conceded,  and  such  is  the  law,  as  in  the  case  of 
Smith  V.  Surman,  9  B.  &  C.  5Q1,  that  there  may  be  a  valid 
parol  contract  for  the  sale  of  timber  as  a  chattel  where  it  is  to 
be  cut  and  delivered  by  the  vendor,  although  designated  as 
being  upon  certain  land,  and  where  the  contract  contemplates 


140         NEW  JERSEY  SUPREME  COURT. 

Slocum  V.  Seymour. 

no  property  to  the  vendee  in  the  trees  until  after  they  are 
actually  cut  down  and  reduced  to  chattels  ;  yet,  where  the  sale 
is  of  an  interest  in  the  trees  standing,  without  having  been  in 
legal  effect  severed  by  the  force  of  a  previous  written  instru- 
ment, and  although  the  American  cases  differ  upon  the  subject, 
the  best  considered  of  them,  and  those  which  I  think  declare 
the  law,  hold  that  such  a  sale  is  of  an  interest  in  lands,  within 
the  meaning  of  the  statute  of  frauds.  Green  v.  Armstrong, 
1  Denio  551  ;  Buck  v.  Pickwell,  27  Vt.  158 ;  Putney  v.  Day, 
6  N.  H.  430 ;  Olmsted  v.  Niles,  7  N.  H.  522. 

This  also  is  a  fair  result  of  the  English  cases,  although  to 
some  extent  conflicting.  The  duly  adverse  ruling  in  point 
in  England  is  in  Lord  Raymond  182,  where  it  is  stated  that 
Treby,  C.  J.,  reported  to  the  other  justices  that  on  a  question 
before  him  at  nisi  pr ins,  whether  the  sale  of  timber  growing 
ought  to  be  in  writing  by  the  statute  of  frauds,  or  might  be 
by  parol;  he  was  of  opinion,  and  ruled  accordingly,  that  it 
might  be  by  parol,  because  it  was  a  bare  chattel.  The  report 
also  states,  and  Powell,  J.,  agreed  to  this  opinion,  but  whether 
informally  or  in  banc,  it  is  difficult  to  tell  from  the  report. 
This  ruling  is  also  mentioned  in  Puller's  Nisi  Prius  282,  as  per 
Treby,  C.  J.  But  the  case  of  Scorell  v.  Boxall,  1  Younge  & 
Jervis  395,  is  directly  to  the  contrary,  and  in  it  Hullock,  B., 
regards  the  report  in  Lord  Raymond  as  a  dictum  merely  and 
not  as  an  authority.  That  report  is  undoubtedly  the  founda- 
tion of  all  the  American  eases  to  the  same  effect,  but  it  is  not 
considered  as  the  settled  law  in  England.  The  case  of 
Scorell  V.  Boxall  was  this :  The  plaintiff  had  purchased,  by 
parol,  underwood  standing,  to  be  cut  by  him,  and  brought  his 
action  against  the  defendants  for  cutting  and  carrying  it 
away.  The  Court  of  Exchequer  held  that  the  plaintiff's 
contract  was  a  mere  parol  contract  for  the  sale  of  growing 
underwood,  a  part  of  the  freehold,  and  in  direct  violation  of 
the  statute  of  frauds — that  it  was  the  sale  of  an  interest  in 
land.  See  also  the  case  of  Teal  v.  Auty,  2  B.  &  B.  99,  to 
the  same  effect  as  to  the  purchase  of  growing  poles. 

As  already  indicated,  trees  may  become  personalty  when 


FEBRUARY  TERM,  1873.  141 

JosHn  V.  New  Jersey  Car  Spring  Co. 

actually  served,  or  when  the  property  in  claim  has  become 
distinct  from  the  freehold  by  written  transfer.  There  may 
also  be  valid  parol  contracts  with  the  owner  of  the  soil,  with 
reference  to  their  sale  and  delivery  as  chattels  in  contempla- 
tion of  severance,  where  no  interest  in  the  trees  standing  is 
intended  by  the  bargain,  the  same  as  contracts  for  the  sale  of 
lumber  to  be  cut,  sawed  and  delivered  as  such  ;  but  when  the 
contract  comprehends  an  interest  in  the  trees  standing,  with  a 
right  in  the  vendee  to  sever  them,  the  subject  matter  is  then 
an  interest  in  land  within  the  statute  of  frauds.  Such  was 
clearly  the  character  of  the  contract  between  these  parties,  as 
the  deed  shows  an  intention  to  convey,  and  does  convey,  an  in- 
terest in  the  wood  and  timber  standing,  when  a  part  of  the 
freehold,  in  the  hands  of  the  vendor.  The  deed  secures  to 
Seymour  an  actual  property  in  the  trees  as  a  part  of  the  land, 
and  not  merely  a  right  of  action  under  a  contract  of  purchase 
of  personal  property. 

The  bargain  having  been  consummated  in  this  case  by  the 
delivery  and  acceptance  of  a  deed  of  conveyance,  the  doctrine 
of  caveat  emptor  must  apply  in  the  absence  of  fraud,  unless 
the  purchaser  has  protected  himself  by  a  covenant  of  warranty 
of  title  in  the  deed.  Phillips  v.  City  of  Hobohen,  2  Vroom 
143;  4  Kent  471,  {note). 

In  this  deed  there  is  no  such  covenant,  and  the  law  will  not 
imply  one.  For  these  reasons  the  action  was  not  maintain- 
able, and  the  judgment  must  be  reversed. 


JACOB  D.  JOSLIN  v.  NEW  JERSEY  CAR  SPRING  COMPANY. 

1.  A  promise  to  pay  "all  liabilities"  of  a  manufacturer,  in  consideration 
of  a  sale  and  transfer  of  all  the  property  and  assets,  will  include  a  dis^ 
puted  claim  for  the  salary  of  the  foreman  of  the  factory. 

2.  An  action  may  be  maintained  on  a  written  promise  made  by  the  de- 
fendant to  a  third  person,  for  the  benefit  of  the  plaintiff,  without  any 
consideration  moving  from  the  plaintiff  to  the  defendant. 

Vol.  VII.  9 


142  NEW  JERSEY  SUPRExME  COURT. 

Joslin  V.  New  Jersey  Car  Spring  Co. 

S.  Where  an  amendment  is  allowed  by  the  court,  at  tlie  trial,  on  motion 
to  set  aside  the  verdict,  botli  surprise  and  substantial  merits  shotild  be 
shown ;  and  wlien  justice  has  been  done  by  a  verdict,  a  new  trial 
should  not  be  granted. 

In  case.  On  rule  to  show  cause  why  verdict  should  not  be 
set  aside. 

The  plaintiff  was  employed  as  the  foreman  of  the  defendants 
at  their  rubber  factory  in  Jersey  City,  from  January,  1866,  to 
February  1st,  1870.  At  the  latter  date  the  company  leased 
the  factory  to  Fields  &  King  for  a  term  of  five  years.  Fields 
&  King  took  the  property,  business  and  assets  of  the  company, 
and  assumed  their  liabilities.  The  plaintiff  continued  in  the 
factory  as  foreman  in  the  employ  of  Fields  &  King  from  Feb- 
ruary 1st,  1870,  to  October  1st,  1871,  at  which  time  the  lease 
was  surrendered  to  the  defendants. 

The  company  took  Fields  &  King's  assets  and  stock,  and 
assumed  all  their  liabilities  ;  also,  all  the  liabilities  o^  Fields, 
who  had  bought  out  King  before  the  transfer  was  made. 

The  contract  between  the  parties  consisted  of  the  proposal 
by  Mr.  Fields  to  the  company,  September  30th,  1871,  which 
■was  presented  to  the  directors  at  a  meeting  in  the  company's 
office,  45  Courtlandt  street.  New  York.  The  plaintiff  was 
present  at  the  meeting  as  a  director.  The  proposal  was  "  to 
cancel  said  lease,  and  carry  on  the  business  of  the  corporation 
under  its  proper  title  for  the  benefit  of  the  stockholders ;  the 
terms  of  the  surrender  of  the  lease  to  be  the  same  terms  as 
it  was  made,  to  wit,  the  company  to  take  all  material  manu- 
factured and  unmanufactured,  with  all  merchandise  and 
accounts,  and  assume  all  liabilities,  crediting  me  with  any 
excess,  and  debiting  me  with  any  accounts  that  may  prove 
bad." 

This  proposition  of  Mr.  Fields  was  accepted  by  a  resolution  of 
the  directors,  entered  in  their  minute  book,  and  the  lease  was 
therein  ordered  to  be  duly  cancelled  from  October  1st,  1871. 

Since  that  time  the  defendants  have  been  in  possession  of 
the  factory,  and  business  has  been  carried  on  in  their  name. 


FEBRUARY  TERM,  1873.  143 

Joslin  V.  New  Jersey  Car  Spring  Co. 

The  plaintiff  continued  as  before  in  the  factory  as  foreman 
up  to  January,  1872,  when  he  was  discharged  by  the  com- 
pany. His  salary  from  January,  1866,  to  May,  1867,  was  at 
the  rate  of  $1200  per  year.  In  May,  1867,  it  was  raised  to 
$1500  per  year.  The  plaintiff's  testimony  was,  that  on 
October  1st,  1869,  he  had  notified  Mr.  Fields,  who  was  the 
president  of  the  company,  owned  more  than  half  the  stock, 
and  was  the  general  agent  and  manager  of  the  business 
during  all  the  time  the  plaintiff  was  there,  that  he  intended 
to  leave.  The  plaintiff  (Joslin)  went  to  Trenton  and  made  a 
contract  with  Wiiitehead  Brothers  to  enter  their  employment 
as  foreman  for  $2000  per  year  and  house  rent.  He  saw 
■  Fields  on  his  return,  and  told  him  of  his  engagement  with 
Whitehead  Brothers.  He  testifies  that  Fields  .said  to  him 
that  he  was  worth  just  as  much  to  their  concern  as  to  any 
other,  and  tliey  could  afford  to  pay  him  as  much  as  any  other, 
requesting  him  to  reconsider  the  matter  and  stay  with  them ; 
also,  that  at  Fields'  request  he  made  an  arrangement  with 
Whitehead  Brothers  to  send  another  man  in  his  place,  and 
stayed  with  the  company  until  January  8th,  1872.  Joseph 
Whitehead,  one  of  the  firm  of  Whitehead  Brothers,  corrobo- 
rated the  plaintiff's  statement,  that  he  had  been  employed  by 
them  for  $2000  per  year  and  a  house  to  live  in.  The  house 
he  was  to  occupy  was  in  the  country,  two  or  three  miles  from 
Trenton,  near  their  factory,  and  rented  for  $75  a  year. 

Fields  testified  that  he  did  not  make  with  the  plaintiff  the 
arrangement  of  October,  1869,  as  he  alleged,  but  admitted 
that  he  did  tell  Joslin  at  that  time  that  they  could  do  as  well 
by  him  as  any  one  else  would.  After  this  alleged  new  con- 
tract, Joslin  continued  to  draw  his  pay  as  before,  $30  per 
week. 

He  claimed  in  the  action  his  increa-sed  salary  from  January 
1st,  1870,  stating  a  balance  of  $571.17  as  due  to  him.  He 
also  claimed  $651.84  for  house  rent  in  Jersey  City,  which  he 
had  paid  from  January  1st,  1870,  to  January  1st,  1872. 
The  jury  rendered  their  verdict  for  the  full  amount  claimed, 
$1223.0L 


144  NEW  JERSEY  SUPREME  COURT. 

Joslin  V.  New  Jersey  Car  Spring  Co. 

Argued  at  November  Term,  1872,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalremple  and  Scudder. 

For  the  rule,  J.  F.  Randolph,  Jr. 

Contra,  J.  B.  Vredenburgh. 

The  opinion  of  the  court  was  delivered  by 

Scudder,  J.  The  facts  above  stated  on  the  part  of  the 
plaintiff  were  found  by  the  jury  in  his  favor.  There  can 
hardly  be  a  doubt  upon  the  testimony  that  he  gave  up  his 
engagement  with  Whitehead  Brothers,  with  the  understand- 
ing that  he  was  to  have  an  annual  salary  of  $2000,  from 
January  1st,  1870,  and  house  rent.  The  defendants  deny  the 
agreement,  but  Fields  admits  that  he  told  him  they  could  do 
as  well  by  him  as  any  one  else  would,  if  he  remained  with 
them.  The  jury  have  rightly  construed  this  as  a  promise 
that  Fields  &  King  would  do  as  well  for  him  as  Whitehead 
Brothers  had  agreed.  If  it  were  otherwise,  it  was  a  deception 
attempted  upon  him.  I  think  the  verdict  is  sustained  by  the 
evidence.  The  plaintiff  was  entitled  to  his  $2000  salary  and 
a  house  for  liis  family  to  live  in,  at  a  reasonable  rent,  if  the 
jury  believed  his  testimony,  and  his  claim  has  strong  merits. 

The  defendants  object  further,  that  the  plaintiff  has  no- 
legal  claim  against  them  for  the  salary  and  house  rent  from 
February  Ist,  1870,  to  October  1st,  1871,  while  he  was  in 
the  employ  of  Fields  &  King,  and  Fields  alone ;  that  they 
did  not  assume  this,  and  the  plaintiff  has  no  right  of  action 
against  them  for  services  rendered  to  Fields  &  King,  and 
Fields  during  that  time. 

The  defendants,  when  the  lease  and  property  were  surren- 
dered to  them  by  Fields  October  1st,  1871,  assumed  "  all 
liabilities  of  Fields  &  King,  and  Fields,  receiving  as  a  con- 
sideration therefor  at  that  time,  besides  the  surrender  of  the 
lease,  all  the  materials  manufactured  and  unmanufactured, 
with  all  the  merchandise  and  accounts."  The  plaintiff  had 
knowledge  and  gave  assent  at  the  time  to  this  arrangement. 


FEBRUARY  TERM,  1873.  145 

Joslin  V.  New  Jersey  Car  Spring  Co. 

for  he  was  present  and  acted  upon  it  as  one  of  the  directors  of 
the  company.  He  assented  to  the  transfer  of  this  liability 
from  Fields  &  King  to  the  company,  and  took  them  as  his 
debtors.  The  defendants  however  contend  that  these  liabili- 
ties which  they  assumed  to  pay  must  be  confined  to  such  as 
were  admitted,  and  such  as  appear  on  the  books  of  Fields 
&King;  and  that  the  statement  of  liabilities  made  out  at 
that  time,  or  soon  after,  does  not  show  this  claim  of  Joslin  as 
unsettled.  It  is  a  sufficient  answer  to  say  that  this  was  not 
the  contract.  The  defendants,  in  their  accepted  proposition, 
assumed  all  liabilities  without  any  specification  or  limitation. 
This  includes  any  and  all  arrearages  of  wages  due  workmen 
for  services,  and  any  unpaid  salary  to  the  foreman,  although 
they  might  be  in  dispute  at  the  time.  The  term  used  in  the 
proposal  is  not  debts,  accounts,  or  any  admitted  and  ascer- 
tained sum,  but  "  all  liabilities."  This  is  broad  enough  to 
cover  a  disputed  claim  for  wages  or  salary  to  the  foreman  of 
the  factory.  Liability  is  defined  to  be  a  state  of  being  bound 
or  obliged  in  law  or  justice.  This  is  alike  the  legal  and  pop- 
ular definition  of  the  word,  and  the  jury  have  so  understood 
and  rendered  it.  The  plaintiff  assented  and  gave  credit  upon 
this  construction,  and  he  has  the  right  now  to  insist  upon  it 
as  the  true  interpretation  of  the  contract. 

But  if  it  be  true  that  the  defendants  assumed  the  payment 
of  all  the  liabilities  of  Fields  &  King,  and  if  this  unsettled 
balance  claimed  by  the  plaintiff  was  included  in  this  assump- 
tion, it  is  further  insisted  that  the  plaintiff  cannot  maintain 
the  action  in  his  own  name  against  them,  as  there  is  no 
privity  of  contract,  and  no  consideration  was  passed  between 
them.  All  the  positions  taken  by  counsel  upon  this  point  in 
the  case  and  many  of  the  authorities  cited,  are  fully  examined 
and  explained  in  Barker  v.  Bucklin,  2  Denio  45.  It  is 
therein  held  that  an  action  may  be  maintained  on  a  promise 
made  by  the  defendant  to  a  third  person  for  the  benefit  of 
the  plaintiff,  without  any  consideration  moving  from  the 
plaintiff;  and  that  where  B  being  indebted  to  the  plaintiff 
sold  property  to  the  defendant,  who  agreed  to  pay  the  price 


146  NEW  JERSEY  SUPREME  COURT. 

Joslin  V.  Xew  Jersey  Car  Spring  Co. 

of  it  to  the  plaintifiPon  account  of  his  demand  against  B,  the 
plaintiff  might  maintain  an  action  against  the  defendant  on 
such  promise.  1  Pars.  Coat.  389-90;  2  Ain.  Ld.  Cas.  185, 
and  notes  ;  Blunt  v.  Boyd,  3  Barb.  209 ;  Feltmakers  v.  Davis, 
1  B.  d'  P.  101,  note  (c). 

It  is  also  stated  in  some  of  the  authorities  above  cited,  as  a 
result  of  a  review  of  the  cases,  that  it  is  now  well  settled,  as 
a  general  rule,  that  in  cases  of  simple  contracts,  if  one  person 
makes  a  promise  to  another  for  the  benefit  of  a  third,  tlie 
third  may  maintain  an  action  on  it  though  the  consideration 
does  not  move  from  him.  See  also  Farley  v.  Cleveland,  4 
Cow.  432 ;  S.  a,  9  Cow.  639. 

The  rule  is  otherwise  in  case  of  sealed  contracts.  Millard 
V.  Baldivin,  3  Gray  484;  Johnson  v.  Foster,  12  Mete.  167. 

The  present  case  avoids  the  question  which  is  sometimes 
raised,  where  the  assumption  is  by  parol,  whether  as  a  promise 
to  pay  the  debt  of  another,  it  is  not  within  the  statute  of 
frauds,  because  here  the  proposal  and  resolution  of  acceptance 
are  in  writing,  and  the  consideration  is  fully  expressed.  Here 
also  there  is  a  new  and  distinct  consideration  for  the  promise 
of  the  defendants  moving  to  them  from  Fields  in  the  surren- 
der of  the  lease,  and  the  transfer  of  all  the  property  and 
assets  of  said  firm  and  of  Fields.  Hetjield  v.  Dow,  3  Dutcher 
440. 

One  other  reason  for  setting  aside  the  verdict  and  granting 
a  new  trial  remains  to  be  considered. 

The  declaration  contained  only  the  usual  common  counts 
and  short  statements  of  the  amounts  claimed,  annexed  as  a 
bill  of  particulars.  After  the  testimony  had  closed,  the 
plaintiff's  counsel  moved  to  amend  his  declaration  by  adding 
account  for  moneys  due  to  the  plaintiff  for  services  rendered 
to  Fields  &  King  and  to  Fields,  the  payment  of  wiiich  was 
assumed  by  the  defendants.  The  amendment  was  allowed  by 
the  court  under  our  practice  act.  Nix.  Dig.  739,  §  166.*  Oa 
this  motion  for  a  new  trial,  the  defendants  claim  that  they 
were  surprised,  and  were  deprived  of  their  appropriate 
defence   by  this    amendment.     Affidavits   have   been    takea 

*Eev.,p.S69,  I  138. 


FEBRUARY  TERM,  1873.  147 

Joslin  V.  New  Jersey  Car  Spring  Co. 

under  the  rule  to  show  cause  to  establish  the  fact  by  a  defence 
to  the  amended  count,  and  to  show  the  effect  of  the  action  of 
the  court  in  permitting  the  amendment. 

If  all  the  facts  that  have  been  shown  on  this  rule  were  in 
the  case  submitted  to  the  jury,  their  verdict  would  still  be 
right;  and  if  the  case  were  before  us  to  set  aside  the  verdict 
upon  those  facts  proven,  this  court  would  not  disturb  it  be- 
cause it  was  against  the  weight  of  evidence,  or  unjust.  This 
testimony  is  mainly  cumulative,  and  the  plaintiff's  case,  from 
the  circumstances  known  to  the  defendants  and  involved  in 
the  issue,  could  have  been  anticipated  readily.  Both  surprise 
and  substantial  merits  should  be  shown  to  warrant  the  court 
in  setting  aside  the  action  of  the  court  below,  and  where 
justice  has  been  done  by  a  verdict,  a  new  trial  should  not  be 
granted.  Steelman  v.  Steelman,  1  Harr.  66 ;  Princeton  Turn- 
pike  v.  Gulick,  1  Harr.  167 ;  Hilliard  on  New  Trials  46- 
48,  398 ;  2  Archh.  Fr.  252. 

I  am  also  satisfied  that  the  amendment  permitted  was  within 
the  power  of  amendment,  as  heretofore  determined  in  this 
court,  and  the  subject  matter  of  the  amendment  was  within 
the  issue  upon  the  record  before  such  amendment  was  made. 
Hohoken  v.  Gear,  3  Dutcher  265;  Price  v.  N.  J.  Railroad 
Co.,  2  Vroom  229. 

The  attempt  of  these  supplemental  affidavits  was  merely  to 
show  that  the  assumption  of  liabilities  was  confined  to  such 
as  appear  on  the  books  of  the  company,  in  opposition  to  the 
written  proposal  made  by  Fields  to  pay  "all  liabilities." 
The  plaintiff  and  the  defendants  knew  and  assented  to  the 
arrangement  at  the  time  it  was  made,  and  upon  all  the  facts 
shown,  I  think  the  plaintiff  was  entitled  to  a  liberal,  and  not 
a  narrow,  construction  of  the  term  used. 

The  rule  is  discharged,  and  the  verdict  sustained. 

Cited  in  Farrier  v.  Schroeder,  1 1  Vr.  601 ;  Redstrake  v.  Cumberland  Ins. 
Co.,  15  Vr.  294;  Pruden  v.  Williams,  11  C.  E.  Gr.  210;  Crowell  v.  Currier, 
12  C.E.  Or.  152;  Crowell  v.  Hospital  of  St.  Barnabas,  12  C.  E.  Gr.  650; 
Price  V.  Trusdell,  1  Stew.  200 ;  Cubberly  v.  Cubberly,  6  Stew.  Eq.  82. 


148  NEW  JERSEY  SUPREME  COURT. 


Neldon  v.  Smith, 


GEORGE  H.  NELDON  v.  SAMUEL  T.  SMITH. 

A  sale  of  coal  as  soon  as  it  is  delivered  from  the  mines,  upon  a  stipu- 
lation that  it  is  not  to  bind,  if  the  coal  company  do  not  deliver  it 
according  to  a  certain  proposal,  which  is  to  sell  five  hundred  tons  or 
more  for  immediate  delivery,  for  a  fixed  price,  and  at  a  certain  place, 
is  conditional  and  mutual. 

If  coal  is  received  from  the  mines  after  the  time  named  in  the  con- 
tract, the  seller  is  not  bound  to  deliver  it,  nor  is  the  buyer  bound  to 
receive  it.  The  buyer  has  not  an  option  to  take  it  for  the  price 
named  in  the  contract. 

The  term  "immediate  delivery,"  explained  to  mean,  among  coal 
shippers  and  dealers,  a  delivery  within  the  present,  or  in  some  cases, 
the  succeeding  month,  and  thus  interpreted  in  this  contract. 
Where  coal  was  accepted  by  the  seller,  by  a  parol  agreement  with  the 
company  after  the  breach,  and  in  settlement  of  damages  claimed  for 
the  breach — Held,  to  be  by  way  of  accord  and  satisfaction,  and  not  a 
delivery  under  the  former  contract. 


In  case.     On  motion  to  set  aside  the  verdict. 

At  tiie  trial  of  the  above  cause  in  the  Sussex  Circuit  Court, 
in  April  Term,  1872,  a  verdict  was  rendered  for  the  plaintiff 
upon  the  facts,  and  several  points  of  law  were  reserved  for 
the  opinion  of  this  court. 

The  following  are  the  material  facts  of  the  case. 

July  29th,  1865,  a  contract  in  writing  was  signed  by  the 
plaintiff  and  defendant  in  these  words: 

"  I  agree  to  take  from  S.  T.  Smith,  three  boat  loads  of 
coal,  deliv'd  at  Waterloo,  for  $5.65-100,  to  be  either  egg  or 
stove,  as  soon  as  coal  is  deliv'd  from  the  mine,  from  this  date 
July  29,  '65,  said  Neldon  to  take  it  in  boats  at  Waterloo,  and 
does  not  bind  said  Smith  ujiless  Del.,  Lack.  &  West.  Co.  deliver 
the  coal  to  him  as  per  offer  of  B.  S.  French's,  per  letter  of 
July  nth,  1865. 

"G.  H.  Neldon, 

[stamp.]  "Samuel  T.  Smith." 

The  former  part  of  the  agreement  is  in  the  handwriting  of 
the  plaintiff,  and  the  latter  was  written  by  the  defendant. 


FEBRUARY  TERM,  1873.  149 

Neldon  v.  Smith. 

This  was  entered  in  a  memorandum  book  of  the  plaintiff. 
In  a  few  minutes  after  this  was  signed  by  the  parties,  they 
went  to  the  defendant's  store,  and  there  the  defendant  drew 
up  a  contract  similar  to  the  above  in  his  own  memorandum 
book,  saying  he  would  like  to  have  a  copy  of  the  contract 
they  had  made  ;  and  it  was  also  signed  by  them. 
It  reads  thus : 

"Engaged  July  29,  1865,  to  G.  H.  Neldon,  Esq.,  three 
boat  loads  coal,  at  five  dollars  and  sixty-five  cents  ($5.65) 
per  ton,  m'fst  weight,  delivered  in  boats  at  Waterloo,  pro- 
vided Del.,  Lack.  &  West.  R.  R.  Co.  deliver  the  coal  to  me 
agreeable  to  price  and  conditions  of  B.  S.  French,  agent's 
letter  of  July  11th,  1865,  the  coal  not  to  be  shipped  out  of 
the  present  stock  in  yard  at  Washington,  but  to  come  fresh 
from  the  mines. 

"  July  29th,  1865.  "  Samuel  T.  Smith, 

"  Geo.  H.  Neldon." 
Directly  below  this  entry  was  the  following,  in  the  defend- 
ant's writing : 

"  P.  S. — If  said  coal  is  not  delivered  by  Sept.  1st,  (agreea- 
ble to  Mr.  French's  offer  to  me)  then  I  agree  to  rescind  my 
engagement  with  Mr.  Neldon,  and  the  above  is  to  be  con- 
sidered void  and  of  no  effect." 
[stamp.] 

The  letter  of  B.  S.  French,  referred  to  in  these  two  entries, 
is  as  follows : 

"  The  Delaware,  Lackawanna  &  Western  R.  R.  Co. — Coal 
Department : 

''  Agency  at  Washington,  N.  J., 

"July  11th,  1865. 
"S.  T.  Smith,  Esq. — Dear  Sir:  1  will  make  you  500 
tons  or  more  for  immediate  delivery,  at  $5.25,  at  Waterloo. 
This  will  give  you  a  good  wholesale  commission.  I  think  I 
have  sold  no  coal  at  your  place  for  less  than  $6.  This  offer 
holds  good  only  to  the  20th  of  this  month. 

"  Yours  truly,  "  B.  S.  French,  Agent. 

"  per  C.  E.  French." 


150  NEW  JERSEY  SUPREME  COURT. 

Neldon  v.  Smith. 

By  letter  of  July  15th,  1865,  from  B.  S.  French,  agent,  to 
the  defendant,  S.  T.  Smith,  at  the  request  of  the  latter,  tiie 
privilege  of  aeceptance  was  extended  to  July  30th.  The 
defendant  wrote  a  letter  to  French  July  28th,  1865,  accepting 
the  offer  of  July  11th,  1865,  and  time  extended,  per  letter  of 
the  20th  inst.,  to  30th  inst. 

There  was  a  strike  in  the  company's  mines.  It  began 
about  July  25th,  and  continued  until  about  September  26th, 
during  which  time  the  production  and  shipment  of  coal  from 
these  mines  were  entirely  suspended. 

August  30th,  defendant  wrote  to  plaintiff  this  letter : 
"G.  H.  Neldon,  Esq. — Dmr  Sir:l  have  heard  nothing 
from  the  Del.,  Lack.  &  West.  R.  R.  Co.  as  to  shipping  me 
coal.  Understand  the  miners  have  not  resumed  work  yet. 
By  conditions  of  our  agreement,  the  same  is  rescinded  and  of 
no  effect  if  coal  is  not  delivered  by  September  1st.  If  they 
commence  shipping,  which  I  think  they  must  soon,  will  see 
you  and  make  another  arrangement.  Will  give  you  the 
advantage  over  all  others,  and  the  refusal  of  my  surplus.  I 
may  see  you  soon,  when  we  will  talk  the  matter  over. 

"  Yours  truly,  "  Samuel  T.  Smith." 

September  4th,  1865,  plaintiff  wrote  as  follows: 

"  S.  T.  Smith,  Esq. — Dear  Sir :  As  soon  as  you  learn  that 

coal  arrives  in  Washington  please  let  me  know,  as  I  am  in 

want  of  some  under  my  contract  with  you." 

"  Yours  truly,  "  Geo.  H.  Neldon." 

September  5th,  defendant  answered : 

"  G.  H.  Neldon,  Esq. — Dear  Sir :  Your  favor  4th  inst. 
received.  I  wrote  you  day  or  two  ago  of  the  expiration  of  our 
contract  by  limitation,  and  stated  that  if  I  got  more  coal  than 
I  needed  I  would  give  you  refusal  of  it,  which  I  still  intend 
doing,  and  will  make  price  lower  to  you  than  any  other 
parties.  There  is  no  coal  coming  in  Washington  yet,  and  I 
can  learn  of  no  indications,  as  the  strike  continues  the  same. 
"  Yours  truly,  "  Samuel  T.  Smith. 

"  P.  S. — You  will  doubtless  remember  that  our  contract  i& 


FEBRUARY  TERM,  1873.  151 


Neldon  v.  Smith. 


conditioned  to  be  null  and  void  if  coal  was  not  delivered  pre- 
vious to  the  first  inst.  S.  T.  S." 

September  1st,  1865,  the  plaintiff  went  to  Waterloo,  saw 
the  defendant  there,  and  demanded  the  coal.  Defendant 
replied  that  he  had  not  any,  that  none  had  arrived  ;  that  the 
contract  was  void  by  its  terms,  and  refused  to  deliver. 

September  27th,  the  company,  by  circular,  notified  the 
defendant,  that  by  reason  of  the  strike  they  cancelled  their 
contract  to  deliver  coal  to  him. 

Afterward  the  defendant  went  to  the  company's  office  in 
New  York,  and  insisted  on  the  delivery  of  coal  to  him  under 
the  contract.  The  company  replied  that  they  were  discharged 
by  the  rules  of  the  trade  in  consequence  of  the  strike.  The 
defendant  threatened  suit  for  damages  unless  they  satisfied 
him.  The  price  of  coal  had  advanced,  and  he  was  willing  to 
take  the  difference  between  the  contract  price  and  the  price 
for  which  it  was  then  selling.  Finally  a  settlement  wan 
made  and  the  company  directed  Mr.  French  to  ship  the  coal 
to  the  defendant  at  the  price  agreed  upon  to  satisfy  his  claim. 

A  boat  load  of  coal,  66  2-20  tons,  had  been  shipped  to 
defendant  July  18th,  1865.  This  was  ten  days  before  the 
contract  was  accepted. 

Between  October  7th  and  November  30th,  the  company 
shipped  to  defendant  about  465  tons,  in  seven  or  eight  dif- 
ferent boats  at  different  times.  The  defendant  agreed  to 
accept  the  boat  load  of  coal  shipped  July  18th,  as  part  of  the 
500  tons,  and  thus  more  than  that  amount  was  delivereil, 
about  530  tons  in  all,  at  the  rate  of  |5.25  per  ton. 

The  action  was  brought  in  this  court  June  Term,  1871. 

Argued  at  November  Term,  1872,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Scudder. 

For  the  plaintiff,  T.  N.  McCarter  and  H.  C.  Pitney. 
For  the  defendant,  R.  Hamilton  and  /.  Vanatla. 


152  NEW  JERSEY  SUPREME  COURT. 

Neldon  v.  Smith. 

ScuDDER,  J.  The  principal  question  of  law  in  this  case 
for  our  determination  relates  to  tlie  true  construction  of  the 
written  contract  between  the  parties  in  this  particular : 
whether  the  terms  impose  a  reciprocal  obligation  to  deliver 
and  receive  the  coal  bargained  for  within  a  certain  time,  with 
the  condition  that  the  sale  shall  be  void  if  the  coal  does  not 
arrive  within  such  time ;  or  whether  the  time  may  be 
extended  at  the  option  of  the  purchaser  until  delivery  shall 
be  made. 

The  defendant  insists  that  after  September  1st,  1865,  he 
was  not  bound  to  deliver  any  coal  to  the  plaintiff  under  this 
contract,  and  that  the  reciprocal  obligations  to  deliver  and 
receive  ceased  at  that  time ;  the  plaintiff  claims  that  whenever 
the  defendant  received  coal  from  the  company  under  his 
contract  with  them,  he  was  entitled  to  demand  and  receive 
the  same  at  his  option. 

The  two  writings  signed  by  the  parties  and  entered  in  their 
memorandum  books,  are  not  alike  in  language,  but  they  sub- 
stantially agree,  and  were  made  at  the  same  time  to  express 
the  terras  of  the  contract.  The  former  entry  was  made  in 
the  plaintiff's  book  with  a  pencil  as  they  stood  together  and 
bargained  on  the  bridge,  and  the  latter  a  few  minutes  after 
when  they  entered  the  defendant's  store,  and  there  the  terms 
were  written  out  more  distinctly  and  fully  in  his  book  with 
pen  and  ink.  They  were  intended  to  be  originals  not  copies, 
and  are  to  be  construed  together  to  arrive  at  the  intention  of 
the  parties. 

Taken  together  they  constitute  an  agreement  for  the  sale  and 
purchase  of  three  boat  loads  of  coal  (about  200  tons,)  at  five 
dollars  and  sixty-five  cents  (§5.65)  per  ton,  to  be  delivered 
from  the  mines  in  boats  at  Waterloo,  upon  the  condition  that 
the  Del.,  Lack.  &  Western  Railroad  Company  deliver  the 
coal  to  the  defendant,  Samuel  T.  Smith,  agreeably  to  the 
terms  of  their  contract  with  him.  The  contract  with  the 
company  is  based  on  the  offer  of  B.  S.  French,  agent,  dated 
July  11th,  1865,  with  the  time  of  acceptance  extended  to 
July  30th,  the  acceptance  of  which  formed  the  agreement; 


FEBRUARY  TERM,  1873.  153 

Neldon  v.  Smith. 

and  this  offer  is  incorporated  into  the  condition  of  the  con- 
tract between  the  plaintiff  and  defendant. 

The  condition  would  then  be,  provided  the  Del.,  Lack.  & 
West.  Railroad  Co.  make  immediate  delivery  of  500  tons  or 
more  of  coal  to  Smith  at  Waterloo,  at  ^5.25  per  ton.  The 
words  "immediate  delivery"  in  ordinary  language  mean  to 
deliver  forthwith ;  but  this  expression  is  explained  in  the 
testimony  as  having  a  trade  meaning  among  coal  shippers  and 
dealers,  to  which  latter  class-  the  plaintiff  and  defendant 
belong.  It  means  a  delivery  during  the  current  month  in 
which  the  offer  is  made  and  accepted,  unless  the  contract  is 
made  on  the  last  day  of  the  month,  or  within  such  limited 
time  that  it  cannot  be  shipped,  and  then  the  whole  of  the 
following  month  may  be  given.  According  to  this  interpre- 
tation, the  contract  between  the  Del.,  Lack.  &  West.  Railroad 
Co.  and  Samuel  T.  Smith  having  been  made  July  28th,  1865, 
an  immediate  delivery  would  be  extended  through  the  follow- 
ing month  of  August.  As  the  company  had  that  time  to 
deliver  to  Smith,  the  defendant,  so  by  the  condition  of  his 
contract  with  Neldon  he  had  the  same  time  to  deliver  coal  to 
him  at  Waterloo,  and  Neldon  was  bound  to  receive  it  if 
delivered  within  that  time.  If  however  another  construction 
of  this  contract  is  made,  and  it  should  be  held  that  Neldon 
only  agreed  to  take  the  coal  according  to  the  offer  of  July 
11th,  which  limited  an  acceptance  to  the  20th  inst.  without 
the  extension  given  to  the  30th,  and  that  an  immediate  de- 
livery must  be  construed  to  be  within  that  month,  then 
neither  party  would  be  bound  beyond  that  time.  In  either 
case,  the  sale  of  coal  was  made  upon  a  proviso  or  condition 
that  it  should  be  delivered  within  a  certaia  time  and  for  a 
certain  price.  If  the  company  delivered  to  Smith  within  the 
time  and  for  the  price  stipulated  he  was  to  deliver  to  Neldon 
under  their  contract,  and  Neldon  was  bound  to  receive  the 
coal.  If  however  the  company  failed  to  deliver  to  Smith 
within  the  time  and  for  the  price  stipulated,  he  was  free  from 
his   obligation    to   deliver,  and  Neldon   was  free  from  his 


154         NEW  JERSEY  SUPREME  COURT. 


Neldon  v.  Smith. 

promise  to  receive.     The  condition  affects  the  obligation  of 
each  party,  and  is  reciprocal. 

The  cases  relating  to  goods  sold  on  condition  to  arrive  were 
elaborately  cited  and  reviewed  by  the  connsel  in  thei-r  argu- 
ments before  the  court.  The  conclusion  to  which  we  must 
come,  after  a  careful  examination  of  these  cases  is,  that  a  sale 
to  arrive  is  conditional,  and  that  if  the  article  contracted  for 
does  not  arrive,  either  from  the  vessel  being  lost  or  other  cause 
by  accident,  and  without  any  fraud  or  fault  of  the  vendor, 
the  contract  is  at  an  end.  The  contract  is  executory,  and  does 
not  pass  the  property  in  the  goods  to  arrive.  It  is  merely  an 
agreement  for  the  sale  and  delivery  of  the  articles  named,  at 
a  future  period  when  they  shall  arrive.  It  is  in  the  nature 
of  a  condition  and  not  a  warranty.  Boyd  v.  Sifkin,  2  Camp. 
326;  Johnson  v.  2IcDonald,  9  M.  &  W.  600;  Lovatt  v. 
Hamilton,  5  lb.  639 ;  Gorrissen  v.  Perrin,  4  C.  B.  (89  E.  C. 
L.)  681 ;  Hale  v.  Eawson,  4  lb.  (93  lb.)  85 ;  Russell  v. 
Nicoll,  3  Wend.  112;  Shields  v.  Pettee,  2  Sandf.  262;  S.  C, 
4  Comst  122 ;  Davis  v.  Shields,  26  Wend.  341 ;  1  Pars.  Cant. 
552,  and  notes. 

The  same  principles  of  law  are  applicable  to  this  case,  as 
it  is  an  agreement  to  sell  upon  an  express  condition.  The 
difference  between  the  cases  cited  and  the  different  results 
arrived  at  in  the  courts,  which  are  sometimes  nice  and  quite 
close,  are  referable  to  the  exact  terms  of  the  contract,  which 
must  control  the  usual  form  and  the  construction  of  such 
bargains. 

The  argument  of  the  plaintiff's  counsel  that  this  condition, 
if  it  be  such,  to  deliver  within  a  certain  time  was  for  the 
benefit  of  the  plaintiff,  and  that  he  only  could  avoid  having 
an  election,  is  based  upon  other  facts,  and  another  principle 
of  law  applicable  to  those  facts.  The  performance  of  the 
stipulation,  where  it  is  held  a  party  has  an  option,  depends 
on  the  acts  of  the  parties  themselves,  and  not  upon  the  acts 
of  others  over  whom  they  have  no  control.  If  either  party 
therefore  fail  to  perform,  he  would,  by  his  own  act,  defeat  the 
condition,  and  have  the  benefit  of  his  own  wrong.     Take  as 


FEBRUARY  TERM,  1873.  155 

Neldon  v.  Smith. 

an  illustration  the  case  of  Campbell  v.  Westcott,  5  Cow.  270. 
In  articles  for  the  sale  of  land  by  which  the  vendee  covenants 
to  pay  and  the  vendor  covenants  to  convey  on  payment,  and 
the  vendee  agrees  that  if  he  fails  in  his  covenant  the  contract 
shall  be  void ;  or  there  is  a  general  proviso  that  if  the  vendee 
do  not  perform  it  shall  be  void,  here  the  contract  is  voidable 
only  at  the  election  of  the  vendor. 

The  reason  is  obvious.  The  vendee,  by  his  own  default, 
his  refusal  to  pay,  may  defeat  the  contract  and  annul  the  sale. 

The  court  held  in  that  case  that  on  the  vendee's  default  to 
pay,  the  vendor  might  consider  the  agreement  void  at  his  own 
election,  or  affirm  it,  and  bring  his  action  on  the  covenants. 

To  the  same  eiFect  are  the  authorities  cited  in  tiie  notes  to 
this  case.  See  also  Rede  v.  Farr,  6  M.  &  8.  121 ;  Taylor^ s 
Landlord  and  Tenant  492. 

The  case  now  under  consideration  differs,  because  the  con- 
dition here  is  if  the  railroad  company,  a  third  party,  with 
whom  the  vendor  had  contracted  for  coal,  shall  deliver  it  to 
him  at  a*  certain  time  and  for  a  fixed  price,  he  will  sell  and 
deliver  to  the  vendee.  This,  as  has  been  already  said,  is  not 
a  warranty  that  he  will  deliver,  but  a  condition.  It  is  also  a 
condition  based  on  the  act  of  another,  and  if  that  other  party 
fail  to  deliver  without  the  fault  of  the  vendor,  the  contract 
falls.  The  terms  of  the  condition  and  of  the  sale  are  not  for 
the  benefit  of  either  party  in  exclusion  of  the  other.  It  is 
not  an  indifferent  matter  to  the  defendant  when  he  shall 
receive  and  deliver  the  coal.  The  price  and  time  are  both 
made  essential  by  the  terms  of  the  condition,  and  by  the  facts 
of  the  case.  If  the  goods  are  delivered  at  a  different  time, 
or  at  a  different  price  than  the  one  stipulated  for,  the  situation 
of  both  parties  is  changed.  The  value  of  the  article  con- 
tracted for  has  probably  increased  or  diminished,  and  if  this 
be  so,  neither  party  should  be  able  to  hold  the  other  to  a 
performance  against  the  plain  intent  of  the  agreement.  It  is 
only  where  the  sale  is  absolute,  and  the  title  to  the  property 
passes  by  the  agreement,  or  where  it  is  construed  as  a  warranty 
that  this  consequence  follows.     In  Russell  v.  Nicoll,  3  Wend. 


156  NEW  JERSEY  SUPREME  COURT. 

Neldon  v.  Smith. 

112,  a  contract  was  made  in  the  city  of  New  York  for  tlie 
sale  of  500  bales  of  cotton,  to  be  delivered,  on  its  arrival  at 
New  York  from  New  Orleans,  at  any  time  between  the  date 
of  the  contract,  February  9th,  and  the  first  day  of  June 
thereafter,  to  be  paid  for  in  cash  on  delivery,  the  cotton  to  be 
weighed,  &c.  This  was  held  to  be  an  executory  contract, 
and  the  title  to  the  cotton  did  not  pass.  It  was  also  said  that 
the  actual  transfer  of  the  property  centracted  to  be  sold 
depended  upon  the  arrival  of  the  cotton  at  New  York,  an 
event  not  absolutely  in  the  control  of  either  party,  and  which 
might  never  happen.  The  period  for  its  delivery,  on  condi- 
tion of  its  arrival,  was  also  fixed,  that  the  parties  might  know 
how  long  they  were  to  remain  under  the  stipulations  of  the 
contract. 

The  difference  between  the  construction  put  upon  the  con- 
tract by  the  plaintiff  and  defendant,  appears  to  be  tliis :  the 
one  interprets  it  without  the  condition  and  the  other  with  it^ 
If  the  sale  stood  upon  the  first  sentence  as  entered  in  the 
plaintiff's  book,  and  signed  by  both  parties,  thus  :  "  I  agree 
to  take  from  S.  T.  Smith,  three  boat  loads  of  coal,  delivered 
at  Waterloo,  for  $5.65-100,  to  be  either  egg  or  stove,  as  soon 
as  coal  is  delivered  from  the  mine  from  this  date,  July  29th, 
1865,"  he  would  be  clearly  right,  and  entitled  to  the  coal 
when  delivered  from  the  mine.  But  when  the  condition  is 
added,  "  said  Neldon  is  to  take  it  in  boats  at  Waterloo,  and 
does  not  bind  said  Smith  unless  Delaware,  Lackawanna  and 
Western  Railroad  Company  deliver  the  coal  to  him  as  per 
offer  of  B.  S.  French's,  per  letter  of  July  11th,  1865,"  and 
when  that  offer  is  of  "  500  tons  or  more  for  immediate  de- 
livery at  $5.25  at  Waterloo,"  he  is  not  entitled  to  the  coal 
unless  there  is  an  immediate  delivery,  as  explained,  at  the  price 
and  place  named. 

It  is  not  said  that  if  they  deliver  at  any  time  under  the 
contract,  but  if  they  make  immediate  delivery.  The  entry 
in  defendant's  book  states  more  explicitly  that  the  coal  was 
to  be  delivered  agreeable  to  price  and  conditions. 

There  is  a  mistake  also  in  saying  that  the  coal  delivered  ia 


FEBEUARY  TERM,  1873.  157 

Neldon  v.  Smith. 

October  and  November,  after  the  strike  had  ended,  was  de- 
livered under  the  contract  between  Smith  and  the  railroad 
company.  It  is  true  that  it  is  so  stated  by  Smith  in  his 
testimony,  but  he  also  calls  it  a  compromise.  The  facts  show 
that  the  company  gave  notice  to  Smith  by  a  circular,  dated 
September  27th,  1865,  that  they  cancelled  their  obligation  to 
deliver  coal  under  their  offer  of  July  llth,  1865  (by  mistake 
called  therein,  August  20th,  1865).  Smith  went  to  their 
office  in  New  York  and  insisted  that  they  were  bound  to 
deliver;  the  company  claimed  that  by  their  terms  and 
customs  and  the  rules  of  trade,  in  consequence  of  the  strike, 
the  contract  was  annulled.  Smith  threatened  to  sue  for 
damages.  The  price  had  advanced,  and  Smith  proposed  to 
take  the  difference  in  satisfaction  of  damages,  and  finally  he 
says :  "  We  came  to  a  compromise,  and  he  (Sykes,  vice-presi- 
dent of  the  company,)  ordered  Mr.  French  to  ship  to  me  the 
coal  to  satisfy  me,  and  satisfied  my  claim." 

After  the  company  failed  to  make  immediate  delivery  of  the 
coal.  Smith's  claim  against  them  was  for  damages  for  non- 
delivery. If  in  settlement  they  agreed  to  enlarge  the  time  for 
delivery  and  acceptance,  it  was  a  new  contract ;  but  it  was 
within  the  statute  of  frauds,  as  it  was  not  in  writing,  and  could 
not  be  enforced  while  it  remained  executory.  Addison  on 
Cont.  236 ;  Swain  v.  Seamens,  9  Wo.U.  272 ;  Marshall  v. 
Lynn,  6  M.  &  W.  109 ;  Moore  v.  Campbell,  10  Ex.  323. 

When  the  coal  was  accepted  by  a  parol  agreement  made 
after  the  breach,  it  was  by  way  of  accord  and  satisfaction  of 
the  damages  growing  out  of  the  breach  of  the  former  contract, 
and  not  a  performance  of  that  contract.  There  has  therefore 
been  no  delivery  under  that  contract.  By  this  arrangement, 
the  boat  load  {66  2-10  tons,)  shipped  July  18th,  1865,  ten 
days  before  the  contract  was  made  between  Smith  and  the 
company,  was  accepted  as  part  of  the  quantity  to  be  delivered, 
and  in  October  and  November  465  or  467  tons  more  were 
shipped  and  received,  all  for  the  price  named  in  the  former 
contract,  so  that  both  the  time  was  enlarged  for  delivery  and 
the  quantity  was  increased  more  than  thirty  tons. 

Vol.  VII.  10 


158  NEW  JERSEY  SUPREME  COURT. 

Nelilon  V.  Smith. 

When  the  first  boat  load  had  been  shipped  from  the  mines, 
October  7th,  and  when  the  whole  amount  had  been  delivered, 
on  November  30tii,  the  defendant  Smith  was  not  in  a  position 
to  compel  the  plaintiflF  to  accept  the  three  boat  loads  he  had 
bargained  for,  because  he  had  never  contracted  to  accept  the 
coal  which  might  arrive  under  any  subsequent  contract, 
compromise  and  settlement,  which  might  grow  out  of  the  non- 
performance of  the  original  contract  with  the  company.  Neither 
can  he,  when  the  price  of  the  coal  has  risen,  call  upon  the  defend- 
ant to  deliver,  and  claim  damages  for  non-delivery,  when  the 
defendant  has  received  the  coal  long  after  the  time  named  in 
their  contract.  There  must  be  mutuality  in  the  obligation 
between  the  parties. 

This  conclusion  settles  the  rights  and  duties  of  the  parties 
under  the  contract  in  controvers)'^,  and  renders  it  unnecessary 
to  express  any  opinion  on  the  rulings  at  the  trial  in  the  ad- 
mission or  rejection  of  evidence. 

The  postscript  at  the  bottom  of  the  entry  in  the  defendant's 
book,  which  was  below  the  date  and  the  signatures  of  the 
iparties,  was  excluded  at  the  trial,  on  motion  of  the  plaintiff's 
counsel,  because  it  could  only  be  connected  with  the  .writing 
above  the  signatures  and  date  by  parol  proof.  If  it  had  been 
admitted,  I  think  it  would  not  have  changed  the  result  which 
has  been  reached. 

It  is  not  therefore  necessary  to  express  any  opinion  upon 
this  point,  and  none  is  given.  It  is  not  within  the  ruling  of 
this  court  in  Johnson  v.  Buck,  6  Vroom  338,  where  the  papers 
were  separate  and  distinct,  and  the  attempt  was  to  connect 
I  hem  by  parol  proof,  and  is  not  free  from  doubt. 

The  legal  position  of  the  parties  was  not  changed  by  the 
betters  and  conversations  between  them  about  September  1st, 
giving  notices  and  making  counter  claims  under  the  contract. 
l^j  its  own  terms  it  had  then  ended. 

The  verdict  is  set  aside,  and  a  new  trial  granted. 


FEBRUARY  TERM,  1873.  159 


State,  HampsoL,  Pros.,  v  Mayor  and  Aldermen  of  Paterson. 


THE  STATE,  DAVID  HAMPSON,  PKOSECUTOK,  v.  THE  MAYOR 
AND  ALDERMEN  OF  THE  CITY  OF  PATERSON. 

THE    STATE,    ABSALOM    B.    WOODRUFF,    PROSECUTOR,    v. 
THE  SAME. 

1.  An  ordinance  to  take  up,  &c.,  Fulton  street,  and  an  ordinance  to  grade 
the  same  having  been  passed,  &c.,  but  without  the  notice  required  by 
the  ninety-ninth  section  of  the  supplement  to  the  charter  of  the  city  of 
Paterson,  approved  March  25th,  186y — Held,  that  however  fatal  the 
objection  as  to  the  want  of  notice  might  have  been  if  promptly  taken 
and  acted  upon  by  the  prosecutors,  it  cannot  be  allowed  to  prevail 
after  considerable  delay,  under  circumstances  rendering  it  probable 
that  they  were  aware  of  the  inception  and  progress  of  the  work,  and 
especially  after  the  improvement  has  been  completed  and  paid  for  by 
the  city. 

^.  The  expense  of  grading,  &c.,  under  the  ninety-eighth  section  of  said 
supplement,  is  to  be  assessed,  &c.,  by  commissioners  possessing  the 
qualifications  required  by  sections  104  and  110,  and  on  the  same  prin- 
ciple of  apportionment  adopted  by  sections  102  and  104. 

■3.  The  commissioners  having  reported  that  they  had  made  a  just  and 
<*quitable  assessment,  &c.,  among  the  property  owners,  &c.,  according 
♦o  the  advantages,  or  benefits,  &c. ;  but  it  being  manifest  from  the 
schedule  accompanying  the  report  as  well  as  from  the  testimony,  that 
there  was  in  fact  no  exercise  of  judgment  by  the  commissioners,  their 
assessment  upon  each  owner  being  governed  solely  by  the  extent  of 
his  frontage — Held,  that  an  assessment  so  made  cannot  be  sustained^ 

^  iy  the  said  amended  charter,  all  contracts,  &c.,  are  to  be  given  to  the 
lowest  bidder ;  the  contract  for  grading,  &c.,  in  this  case  was  awarded 
to  H„  the  lowest  bidder,  at  fifteen  cents  per  cubic  yard  ;  by  the  contract 
as  reduced  to  writing  and  executed  by  H.  and  the  city,  the  grading 
was  to  be  done  "  for  the  price  and  sum  of  fifteen  cents  per  cubic  yard 
for  earth  excavation,  and  two  dollars  and  fifty  cents  per  cubic  yard 
for  all  rock  excavation,"  the  contract  being  so  drawn  in  pursuance  of 
an  ordinance,  the  second  section  of  which  provides  as  follows :  "  That 
hereafter,  when  a  contract  is  made  by  the  city  of  Paterson,  for  grading 
streets  or  excavating  earth,  and  no  price  is  mentioned  for  rock  work, 
there  shall  be  paid  to  contractors  two  dollars  and  fifty  cents  for  each 
cubic  yard  of  rock  found,  provided  said  rock  shall  exceed  one  cubic 
yard  in  size." — Held,  that  this  section  of  the  ordinance  being  in  direct 
conflict  with  a  plain  provision  of  the  charter,  both  it  and  the  written 
agreement  made  in  pursuance  of  it,  are  utterly  void. 


160  NEW  JERSEY  SUPREME  COURT. 

State,  Hampson,  Pros.,  v.  Mayor  and  Aldermen  of  Paterson. 

Argued  at  November  Term,  1872,  before  Justices  Depue^ 
Van  Syckel  and  Woodhull. 

For  the  prosecutors,  John  Hopper  and  A.  B.  Woodruff. 
For  the  defendant,  H.  A.  Williams. 

The  opinion  of  the  court  was  delivered  by 

Woodhull,  J.  These  writs  bring  up  for  review  a  certain' 
assessment  of  expenses  for  grading  Fulton  street,  in  the  city 
of  Paterson,  together  with  all  the  proceedings  relating  to  the- 
said  grading  and  assessment. 

It  is  admitted  on  the  part  of  the  defendants  that  these 
proceedings  were  had  and  taken  under  the  act  for  the  further 
revising  and  amending  the  act  to  incorporate  the  city  of 
Paterson,  approved  March  25th,  1869,  [Laws,  1869,  p.  706,) 
and  they  are  attempted  to  be  justified  as  being  in  substantial 
compliance  with  the  provisions  of  that  act. 

The  reasons  assigned  for  setting  aside  this  assessment,, 
relate  1st,  To  the  validity  of  the  ordinance  by  virtue  of  which 
the  grading  was  done;  2d,  To  the  qualifications  of  the  com- 
missioners ;  3d,  To  the  principles  upon  which  the  assessment 
was  made ;  and  4th,  To  the  fairness  and  the  amount  of  the 
assessment. 

A  petition  from  property  owners  on  Fulton  street,  (Mr. 
Woodruff,  the  prosecutor  of  the  second  writ  above  named, 
being  one  of  them,)  for  the  grading  of  said  street  from 
Totowa  to  Union  avenue,  was  presented  to  the  board  of 
aldermen,  and  referred  to  the  street  committee  July  26th, 
1869. 

November  8th,  1869,  that  committee  reported,  recommend- 
ing the  grading  as  petitioned  for,  and  their  report  was 
adopted. 

November  15th,  1869,  the  contract  to  grade  Fulton  street 
was  awarded  to  T.  F.  Hoxsey,  at  fifteen  cents  per  cubic  yard. 

November  22d,  1869,  the  contract,  &c.,  was  read,  approved^ 
and  the  mayor  requested  to  sign  the  same. 


FEBRUARY  TERM,  1873.  161 

State,  Hampson,  Pros.,  v.  Mayor  and  Aldermen  of  Paterson. 

January  10th,  1870,  an  ordinance  to  take  up,  vacate  and 
relay  Fulton  street,  from  Totowa  avenue  to  Union  avenue, 
was  read,  &c,,  and  passed  unanimously.  On  the  same  day  an 
ordinance  to  grade  Fulton  street  was  read  and  passed  unani- 
mously. 

The  first  objection  to  the  ordinances  of  January  10th,  1870, 
is,  that  they  were  introduced  and  passed  without  notice.  The 
ninety-eighth  section  of  the  act  of  1869,  makes  it  lawful  for 
the  board  of  aldermen,  whenever  in  their  opinion  the  public 
good  requires  it,  to  lay  out,  vacate  or  alter  streets  by  ordi- 
nance, and  also  to  order  any  street  to  be  graded,  &c. ;  but  the 
next  section  imperatively  forbids  the  introduction  of  any  such 
ordinance,  unless  public  notice  shall  have  been  given  of  the 
intended  improvement,  &c.,  and  published  as  therein  directed, 
briefly  describing  the  intended  improvement,  and  requesting 
all  persons  objecting  to  the  same  to  present  their  objections  in 
writing  to  the  board  of  aldermen  or  the  city  clerk,  on  or 
before  ten  days  from  the  date  of  such  notice.  (Laws,  1869, 
p.  743,  §  99.) 

Although  the  return  called  for  is  of  all  the  proceedings 
touching  and  concerning  the  said  grading  and  assessment, 
there  is  nothing  in  the  return  sent  up,  nor  in  the  testimony, 
to  show  that  the  notice  required  by  the  act,  or  any  notice  at 
all,  was  given,  or  attempted  to  be  given,  before  the  passage  of 
these  ordinances. 

The  fact  of  notice  being  fundamental  to  these  proceedings,  and 
one  peculiarly  within  the  knowledge  of  the  defendants,  the 
burden  of  making  it  out,  or  at  least  of  disclosing  facts  and 
circumstances  from  which  it  might  be  fairly  inferred,  rested 
upon  them. 

If  notice  was  in  fact  given,  the  means  of  proving  it  must 
have  been  abundant  and  easily  accessible. 

Under  such  circumstances,  the  total  absence  of  proof  raises 
the  strongest  presumption  that  the  required  notice  was  never 
^iven  ;  and  such  is  the  clear  result  of  all  the  evidence  before 
us  in  these  cases.  But  although  we  cannot  avoid  the  conclu- 
sion  that,  to  this  extent,  the  prosecutors  are  sustained  in  their 


162  NEW  JERSEY  SUPREME  COURT. 

State,  Hampson,  Pros.,  v.  Mayor  and  Aldermen  of  Paterson. 

iDsistment  as  to  the  want  of  notice,  we  are  satisfied  that  they 
are  not  now  in  a  position  to  take  advantage  of  it. 

There  can  be  little  doubt  that  they  were  aware,  almost  from 
the  first,  of  the  inception  and  progress  of  the  proceedings  now 
before  us.  One  of  them  had  joined  in  a  petition  for  the  grad- 
ing of  Fulton  street,  as  early  as  July,  1869.  It  is  true  that 
this  street  was  subsequently  vacated  and  relaid.  But  long 
after  this,  May  2d,  1870,  the  prosecutor  referred  to,  Mr, 
Woodruff,  sent  to  the  board  of  aldermen  a  second  petition  re- 
lating to  the  proposed  improvement.  This  was  about  a  month 
after  the  completion  of  the  work  for  which  the  assessment  in 
question  was  made.  The  commissioners  finished  the  assess- 
ment, and  made  their  report  May  21st,  1870,  and  the  writs  in 
these  cases  were  not  issued  until  July  8th,  1870. 

However  fatal  the  objection  now  under  consideration  might 
have  been  if  promptly  taken  and  acted  upon,  it  cannot  be  al- 
lowed to  prevail  after  so  much  delay,  and  especially  after  the 
improvement  has  been  completed  and  paid  for  by  the  city. 

It  is  further  objected  to  the  assessment  in  this  case,  that  the 
commissioners  by  whom  it  was  made  did  not  possess  the 
requisite  qualifications. 

The  second  subdivision  of  the  ninety-eighth  section  empow- 
ers the  board  of  aldermen  to  order  and  cause  any  street,  or  sec- 
tion of  a  street,  to  be  graded,  &g.,  at  the  expense  of  the  owners 
of  lands  and  real  estate  on  the  line  of  said  street,  or  section  of 
a  street,  and  at  the  expense  of  the  property  benefited  thereby. 
To  effect  this,  there  must  of  course  be  an  assessment,  and  the 
legislature  no  doubt  intended  it  to  be  made  by  persons  pos- 
sessing the  qualifications  presented  in  another  part  of  the 
charter,  for  those  who  are  required  to  perform  similar  duties. 

The  104th  section  requires  the  board  of  aldermen  to  appoint, 
for  the  purposes  of  any  assessment  for  opening,  altering  or 
widening  a  street,  three  judicious,  disinterested  freeholders, 
residents  of  said  city,  commissioners,  no  two  of  whom  shall  be 
residents  of  the  same  ward. 

The    110th    section    provides,   that   all    commissioners    of 


FEBRUARY  TERM,  1873.  163 

State,  Hampson,  pros.,  v.  Mayor  and  Aldermen  of  Paterson. 

assessment,  appointed  by  or  under  this  act  shall,  before  they 
proceed  to  the  duties  of  their  appointment,  subscribe  and  take 
an  ©ath  before  some  person  lawfully  authorized  to  administer 
oaths,  faithfully,  honestly  and  impartially  to  perform  the 
duties  required  of  them. 

All  that  appears  with  respect  to  the  qualifications  of  the 
commissioners  in  this  case  is  found  in  their  report,  and  in  the 
following  language :  "  We,  the  undersigned  assessors,  ap- 
pointed by  the  board  of  aldermen  of  the  city  of  Paterson, 
&c.,  having  been  first  duly  sworn  according  to  law,"  &c. 

Taking  the  case  as  it  stands,  instead  of  showing  that  those 
commissioners  possessed  all  the  required  qualifications,  it 
affords  no  reasonable  assurance  that  they  possessed  a  single 
one  of  them. 

In  such  a  case,  the  maxim,  quod  non  apparet,  non  est, 
fairly  applies. 

The  objection  to  the  assessment  on  this  second  ground  is 
sustained,  and  is  fatal. 

It  is  further  objected  to  this  assessment  that  it  was  made 
by  the  commissioners  without  any  exercise  of  their  judgment, 
and  on  a  wrong  principle.  The  grading  was  to  be  done  "  at 
the  expense  of  the  owners  of  land  and  real  estate  on  the  line 
of  said  street,  &c.,  and  at  the  expense  of  the  property  bene- 
fited thereby."  The  language  of  this  clause  is  to  be  under- 
stood as  implying  the  principle  of  apportionment  recognized 
and  adopted  in  sections  102  and  104,  viz. :  that  the  assessment 
shall  be  made  upon  the  owners  of  the  lands,  &c.,  and  upon 
the  property  benefited,  in  proportion  to  the  benefit  to  each  lot 
or  parcel  on  the  line  of  such  street. 

The  commissioners  certify  and  report  that  they  have  made 
a  just  and  equitable  assessment  of  the  expenses  for  grading 
Fulton  street,  &c.,  among  the  property  owners  on  such  street, 
according  to  the  advantages  or  benefits  derived  from  such 
improvement  as  nearly  as  may  be,  &c. 

Now,  while  this  report  seems  to  indicate  that  the  commis- 
sioners did  exercise  their  judgment,  as  they  were  bound  to 
do,  in  order  to  determine  the  benefits,  &c.,  and  standing  alone 
might  perhaps  be  regarded  as  substantially  complying  with 


164  NEW  JERSEY  SUPREME  COURT. 


State,  Hampson,  pros.,  v.  Mayor  and  Aldermen  of  Paterson. 

the  requirements  of  the  charter,  it  cannot  but  be  manifest, 
from  the  schedule  annexed  to  the  report,  and  forming  a  part 
of  it,  and  from  the  testimony  in  the  case,  that  there  was  in 
fact  no  such  exercise  of  judgment  by  the  commissioners,  their 
assessment  upon  each  owner  being  governed  solely  by  the 
extent  of  his  frontage.  They  simply  divided  the  whole 
expense  by  the  whole  number  of  lioeal  feet  fronting  on  the 
street  to  get  the  rate  per  foot,  and  then  to  ascertain  the 
amount  each  owner  was  to  pay,  merely  multiplied  the  number 
of  feet  in  his  frontage  by  the  rate  per  foot. 

The  testimony  of  Mr.  Goetchius,  the  city  surveyor,  and 
one  of  the  commissioners,  confirms  what  is  sufficiently  appar- 
ent on  the  face  of  the  report  and  schedule. 

In  answer  to  the  question,  "  on  what  principle  were  the 
assessments  made  ?  "  he  answers :  "  the  assessments  were  made 
according  to  a  system  followed  for  years  in  this  city,  assessing 
equally  per  lineal  foot  fronting  on  the  street." 

Such  an  assessment  does  not,  in  any  fair  sense,  meet  the 
requirements  of  the  charter,  and  cannot  therefore  be  sustained. 

A  fourth  objection  urged  against  this  assessment  relates  to 
the  contract  under  which  the  work  was  done,  and  to  the 
amount  of  the  assessment. 

By  the  112th  section  of  the  amended  charter,  it  is  enacted 
"  that  all  contracts  for  doing  the  work  or  furnishing  the 
materials  for  the  improvements  provided  for  in  the  act,  shall 
at  all  times  be  given  to  the  lowest  bidder,  he  or  they  giving 
ample  security  for  doing  the  same  according  to  contract. " 

The  report  of  the  street  committee,  recorimending  the 
grading  of  Fulton  street,  &c.,  has  been  referred  to.  At  the 
same  time,  November  8th,  18C9,  this  committee  recommended 
that  they  should  be  directed  to  advertise  for  proposals  for 
said  work.  This  recommendation  was  adopted.  Whether 
proposals  were  advertised  for  or  not,  does  not  appear.  It  does 
appear  however  that  just  one  week  after  the  adoption  of  this 
report,  and  almost  two  mouths  before  the  ordinance  for 
grading  Fulton  street  was  passed,  the  contract  to  grade  that 
street  was  awarded  to  T.  F.  Hoxsey  at  fifteen  cents  per  cubic 
yard.     One  week  later,  November  22d,  1869,  a  contract  was 


FEBRUARY  TERM,  1873.  165 

State,  Hauipson,  Pros.,  v.  Mayor  and  Aldermen  of  Paterson. 

"drawn  up,  executed  by  Mr,  Hoxsey,  and  approved  by  the 
mayor,  by  the  terms  of  which  Mr.  Hoxsey  was  to  grade 
Fulton  street,  &c.,  "for  the  price  and  sum  of  fifteen  cents  per 
cubic  yard  for  earth  excavations,  and  two  dollars  and  fifty 
cents  per  cubic  yard  for  all  rock  excavation."  This  strange 
departure  from  the  contract  as  awarded  is  explained  by  an 
ordinance  concerning  contracts,  passed  July  13th,  1869. 

The  second  section  of  this  ordinance  provides  as  follows  : 
"  That  hereafter,  when  a  contract  is  made  by  the  city  of 
Paterson  for  grading  streets  or  excavating  earth,  and  no  price 
is  mentioned  for  rock  work,  there  shall  be  paid  to  contractors 
for  all  rock  work  the  sum  of  two  dollars  and  fifty  cents  for 
each  cubic  yard  of  rock  found,  provided  said  rock  shall 
exceed  one  cubic  yard  in  size." 

The  charter,  it  will  be  remem-bered,  imperatively  requires 
all  contracts,  at  all  times,  to  be  given  to  the  lowest  bidder. 
But  this  ordinance  provides,  that  for  a  certain  kind  of  work 
there  shall  be  paid  to  the  contractor  a  fixed  price,  without 
reference  to  any  proposals  or  bidding,  and  no  matter  how 
many  men  might  be  found  to  do  the  same  work  for  less 
money.  The  board  of  aldermen  had  no  authority  to  pass  su"eh 
an  ordinance.  The  second  section  is  in  direct  conflict  with  one 
of  the  plainest  provisions  of  the  charter,  and  breaks  down  one 
of  its  wisest  safeguards  against  extortionate  charges  and  bur- 
densome assessments.  This  section  of  the  ordinance,  and  the 
written  agreement  made  in  pursuance  of  it,  are  not  merely 
voidable,  but  utterly  void  and  without  effect. 

It  appears  that  the  whole  excavation  amounted  to  seven 
thousand  and  thirty-five  cubic  yards. 

This,  at  fifteen  cents  per  cubic  yard,  will  give  the  sum  to 
which  Mr.  Hoxsey  is  entitled  under  his  contract  with  the  city, 
ard  to  this  amount  any  future  assessment  must  be  limited. 

For  the  reasons  above  stated,  the  assessment  in  this  case 
must  be  set  aside  with  costs,  and  new  commissioners  be 
appointed  in  accordance  with  the  charter. 

Cited  in  State,  Ropes,  pros.,  v.  Essex  Public  Road  Board,  8  Vr.  335  ;  State, 
'Graham,  pros.,  v.  Paterson,  8  Vr.  380 ;  Slate,  Youngster,  pros.,  v.  Paterson. 
11  Vr.  244. 


166  NEW  JERSEY  SUPREME  COURT. 


State,  Gregory  et  al.,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 


THE  STATE,  DUDLEY  S.  GREGORY  AND  OTHERS,  PROSE- 
CUTORS, V.  THE  MAYOR  AND  ALDERMEN  OF  JERSEY 
CITY. 

Where,  under  the  sixty-ninth  section  of  the  chart-er  of  Jersey  City, 
the  power  is  given  to  the  board  of  public  works  "  to  purchase  sites 
for,  and  purchase  or  construct  a  city  hall,  school-houses,  engine-houses, 
&c.,  and  such  other  buildings  as  may  be  necessary  for  tiie  purposes  of 
this  act,"  &c.~Held, 

1.  That  the  legislature  did  not  intend  by  these  provisions  to  invest 
the  board  of  public  works  with  an  arbitrary  or  unlimited  power  to 
purchase  either  land  or  buildings. 

2.  Every  lawful  exercise  of  this  power  to  purchase  land,  necessarily 
involves  the  determination  by  the  board  of  two  things  :  first,  that  some 
particular  building  is  necessary ;  second,  the  quantity  of  land  required 
as  a  site  for  such  building. 

3.  A  resolution  of  said  board  to  purchase  a  tract  of  about  nine  acres  of 
land,  "  to  be  used  as  a  site  for  the  location  of  a  city  hall  and  other 
city  buildings,"  is  unauthorized,  for  there  is  no  determination  of  the 
board  that  so  large  a  tract  is  needed  for  the  location  and  proper  use 
of  a  eity  hall,  and  the  judgment  of  the  board  really  was,  that  the  tract 
was  sufBcient  not  only  for  a  city  hall,  but  for  other  city  buildings. 

4.  Tlie  legislature  did  not  intend  to  confer  on  the  board  of  public 
works  the  power  to  purchase  a  site  or  sites  for  buildings  not  desig- 
nated or  even  known. 


Co'tiorari  to  remove  resolutions,  &c. 

This  writ  brings  up  two  resolutions  passed  by  the  board  of 
public  works  of  Jersey  City,  on  the  13th  day  of  February, 
A.  D.  1872,  viz.: 

Resolved,  That  the  proposition  of  Mahlon  B.  Crampton  to 
sell  to  the  city  the  plot  of  ground  known  as  a  portion  of  the 
estate  of  James  Harrison,  containing  three  hundred  and 
ninety-six  thousand  seven  hundred  and  sixty-four  squai-e  feet, 
as  shown  on  a  diagram  accompanying  said  proposition,  for 
the  sum  of  §2000  for  every  two  thousand  five  hundred  square 
feet,  be  accepted,  and  that  a  contract  be  entered  into  for  the 
purchase  of  the  same,  and  that  the  city  attorney  be  requested 
to  prepare  said  contract,  and  have  the  same  executed  by  the 


FEBRUARY  TERM,  1873.  167 

State,  Gregory  et  al.,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 

proper  authorized  parties;  the  same  to  be  used  for  a  site 
for  the  location  of  city  hall  and  other  city  buildings;  pay- 
ments to  be  made  in  bonds  of  the  city,  to  run  for  twenty 
years,  and  bearing  interest  at  the  rate  of  seven  per  cent,  per 
annum,  said  bonds  to  be  taken  at  par  and  accrued  interest  up 
to  the  date  of  the  delivery  of  the  deed. 

Resolved,  That  the  board  of  finance  and  taxation  be  and 
are  hereby  requested  to  issue  the  necessary  bonds  for  the  pay- 
ment of  the  purchase  money  for  land  known  as  a  portion  of 
the  Harrison  estate,  for  a  site  for  new  city  hall,  and  other 
city  buildings. 

Argued  at  November  Term,  1872,  before  Justices  Deptje, 
Van  Syckel  and  Woodhull. 

For  the  prosecutors,  8.  B.  Ransom. 

For  the  defendants,  J.  Dixon. 

The  opinion  of  the  court  was  delivered  by 

Woodhull,  J.  As  the  second  of  the  two  resolution* 
brought  up  by  this  writ  must  evidently  stand  or  fall  with  the 
other,  the  only  matter  really  in  dispute  is  the  validity  of  the 
first  resolution ;  and  this,  it  is  admitted,  depends  oa  the  true 
construction  of  the  sixty-ninth  section  of  the  act  to  reorganize 
the  local  government  of  Jersey  City.     {Laws,  1871,  p.  1094.) 

The  provisions  of  that  section,  so  far  as  they  relate  to  the 
power  of  the  board  of  public  works  to  purchase  land,  are  as 
follows:  "That  the  said  board  shall  have  power  to  purchase 
sites  fur,  and  purchase  or  cowstruct  a  city  hall,  school-houses, 
engine-houses,  &c.,  and  such  other  buildings  as  may  be  neces- 
sary for  the  purposes  of  this  act,"  &c. 

Nothing  can  be  plainer  than  that  the  legislature  did  not 
intend  by  these  provisions  to  invest  the  board  of  public 
works  with  an  arbitrary  or  unlimited  power  to  purchase 
either  land  or  buildings.  Their  authority  to  purchase  or  con- 
struct buildings  is  expressly  limited  to  such  as  are  necessary  y 


168  NEW  JERSEY  SUPREME  COURT. 

State,  Gregory  et  al.,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 

and  as  to  land,  their  authority  extends  no  further  than  the 
purchasing  of  sites  for  the  necessary  buildings.  These  words, 
necessary  and  sites,  are  to  be  understood  here  in  their  ordinary 
and  popular  sense.  A  building  necessary  for  the  purposes  of 
tlie  act  is  one  convenient  and  proper  for  such  purposes,  {State, 
N.  J.  R.  R.  &  T.  Co.,  Pros.,  v.  Hancock,  Coll.,  6  Vroom  537,) 
a  building  reasonably  required  or  needed  for  carrying  into 
effect  the  provisions  of  the  act. 

And  a  site,  in  the  sense  of  the  act,  means  only  so  much 
land  as  is  reasonably  required  or  needed  for  the  location  and 
convenient  use  of  some  particular  necessary  building. 

Every  lawful  exercise  of  this  power  to  purchase  land 
necessarily  involves  the  determination  by  the  board  of  two 
things :  first,  that  some  particular  public  building  is  neces- 
sary ;  secondly,  the  quantity  of  laud  required  as  a  site  for 
such  building.  If  it  appears  that  the  board  has  failed  to 
exercise  its  judgment  in  regard  to  either  of  these  essential 
matters,  the  purchase  of  land  attempted  in  this  case  cannot 
be  sustained. 

Now,  while  it  may  be  fairly  inferred  from  the  resolution 
itself  that  a  new  city  hall  is,  in  the  judgment  of  the  board, 
necessary  in  the  sense  of  the  act,  there  is  nothing  to  justify 
such  an  inference  with  respect  to  any  other  public  building. 
The  city  hall  is  the  only  building  named  in  the  resolution, 
:and  is  manifestly  the  only  one  to  which  the  attention  of  the 
board  has  been  specially  directed,  and  about  which  its  judg- 
ment had  been  exercised. 

Having  decided  upon  the  necessity  of  the  additional 
building,  tlie  board  was  then  authorized  by  the  act  to  pur- 
chase for  that  building  a  site  in  the  sense  just  explained — not 
a  tract  of  unlimited  extent,  designed  for  the  location  and  use 
of  such  buildings  as  might,  in  the  near  or  distant  future, 
become  necessary,  but  only  so  much  land  as  in  the  judgment 
•of  the  board  was  reasonably  required  for  the  purposes  of  that 
one  building,  the  city  hall,  which  the  board  had  decided  to 
be  iheyi  necessary. 

The  object  of  the  resolution  in  question,  and  its  effect  if 


FEBEUARY  TERM,  1873.  169 

State,  Gregory  et  al.,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 

sustained  is,  to  complete  a  contract  for  the  purchase  of  about 
nine  acres  of  land,  at  a  cost  to  the  city  of  more  than  $300,000, 

Has  the  board  at  any  time  in  the  exercise  of  its  official 
judgment,  determined  that  so  large  a  tract  is  needed  for  the- 
location  and  proper  use  of  a  city  hall  ?  Manifestly  not.  On 
the  contrary,  it  appears  incontestably  from  the  resolution  itself 
that  the  judgment  of  the  board  really  was,  that  the  tract  in 
question  is  sufficient,  not  only  as  a  site  for  a  city  hall,  but  for 
other  buildings  besides.  It  was,  in  the  language  of  the  resolu- 
tion, "  to  be  used  for  a  site  for  the  location  of  city  hall,  and 
other  city  buildings." 

But  as  has  already  been  intimated,  it  must  be  assumed  that 
these  other  buildings  were  not  then,  in  the  judgment  of  the 
board,  necessary. 

The  authority  therefore  to  purchase  any  land  at  all,  as  sites 
for  those  buildings,  was  wholly  wanting. 

The  sole  ground  of  the  authority  to  purchase  was  the  then 
existing  necessity  for  the  single  building  named  in  the  resolu- 
tion of  the  board. 

The  idea  that  the  legislature  intended  to  confer  upon  this 
department  of  the  city  government,  influential  and  honorable 
and  powerful  as  it  undoubtedly  is,  and  was  designed  to  be,  the 
power  to  purchase  a  site  or  sites  for  buildings  not  designated 
or  even  known,  finds  no  substantial  support  either  in  the  lan- 
guage or  in  the  scheme  and  purposes  of  the  act. 

The  word  sites  has  evidently  been  understood  by  the  board 
in  a  sense  far  more  vague  and  general  than  the  legislature  in- 
tended. 

One  induction  of  this  is,  the  use  in  the  resolution  of  the 
singular  site,  in  connection  with  more  than  one  building,  while 
the  act  has  only  the  plural  sites  for  buildings,  each  site  being 
regarded  as  holding  a  certain  fixed  relation  to  its  proper  build- 
ing, its  eitent  necessarily  varying  with,  and  to  be  determined 
by  the  size,  character  and  uses  of  that  building. 

To  permit  the  consummation  of  the  purchase  contem- 
plated in  this  case,  would  be  in  effect  to  concede  to  the  board 
of  public  works  an  almost  unlimited  power  to  purchase  real 


170  NEW  JERSEY  SUPREME  COURT. 

State,  Little  et  al.,  Pros.,  v.  Mayor  and  Commou  Council  of  Newark. 

estate,  and  for  that  purpose  to  make  the  most  exhausting 
demands  upon  the  treasury  and  the  resources  of  the  city. 

For  if,  under  the  circumstances  appearing  in  this  case,  the 
board  may  lawfully  purchase  nine  acres  of  land  as  a  site  for  a 
city  hall  and  other  city  buildings,  there  is  nothing,  so  far  as  I 
can  see,  to  prevent  it  purchasing  another  tract,  somewhere  else 
within  the  city  limits,  of  nine  or  of  ninety  acres  as  a  site  for  a 
fichool-house  or  a  hospital,  and  other  city  buildings. 

My  conclusion  is,  that  the  resolutions  brought  up  by  Ehis 
writ  were  unauthorized,  and  must  therefore  be  set  aside. 

Cited  in  Seidler  v.  Chosen  Freeholders,  &c.,  10  Vr.  632. 


THE  STATE,  JOHN  M.  LITTLE  AND  OTHERS,  PEOSECUTORS, 
V.  THE  MAYOR  AND  COMMON  COUNCIL  OF  NEWARK. 

An  assessment  of  the  costs,  &c.,  of  regrading  a  street  nnder  the  act  of 
March  21st,  1S66,  to  revise  and  amend  the  charter  of  the  city  of  New- 
ark not  sustained, — 

1.  Because  it  does  not  appear  by  the  report  and  proceedings  sent  up 
that  the  assessment  was  made  upon  each  owner  in  the  proportion  re- 
quired by  the  act. 

2.  Because  while  it  appeared  that  two  of  the  three  commissioners  ap- 
pointed to  make  the  assessment  possessed  the  requisite  qualifications, 
this  did  not  appear  as  to  the  third  one. 


On  certiorari  to  remove  assessments. 

Argued  at  November  Term,  1872,  before  Justices  Depue, 
Van  Syckel  and  Woodmull. 

For  the  prosecutors,  T.  N.  McCarter. 

For  the  defendants,  W.  H.  Francis. 

The  opinion  of  the  court  was  delivered  by 
WoODHULL,  J.     The  writ  brings  up  an  assessment,  &c., 
of  the  costs  and   expenses   of   regrading   Mount    Prospect 


FEBRUARY  TERM,  1873.  171 

State,  Little  et  al.,  Pros.,  v.  Mayor  and  Common  Council  of  Newark, 

avenue,  from  Bloomfield  avenue  to  the  old  Bloomfield  road, 
bearing  date  February  2d,  1871. 

The  first  section  of  the  act  of  March  21st,  1866,  to  revise 
and  amend  the  charter  of  the  city  of  Newark  {Ads,  1866,  p. 
671,)  provides  that  whenever  the  common  council  of  the  city 
of  Newark  shall  establish  or  change  or  alter  a  grade  of  any 
street,  &c.,  they  shall  make  compensation  to  owners  of 
property  for  any  actual  damages  caused  by  establishing  or 
altering  or  changing  such  grade,  the  compensation,  &c.,  to 
constitute  a  part  of  the  whole  amount  of  costs,  damages  and 
expenses  to  be  assessed,  and  that  all  proceedings  for  making 
an  estimate  and  assessment  of  said  damages,  and  to  provide 
for  the  payment  of  the  costs,  damages  and  expenses  of  estab- 
lishing, altering  or  changing  said  grade,  and  for  the  assess- 
ment thereof,  upon  the  owners  of  all  the  lands  and  real  estate 
intended  to  be  benefited  thereby,  shall  be  had  and  taken  in 
the  manner  provided  by  law  in  cases  of  laying  out  and 
opening,  &c.,  any  street  within  said  city. 

By  the  act  to  revise  and  amend  the  charter  of  the  city  of 
Newark,  approved  March  11th,  1857,  {Ads,  1857,  p.  166,  § 
105,)  in  order  to  provide  for  the  payment  of  the  costs,  dama- 
ges and  expenses  of  laying  out,  &c,,  any  street  within  said 
city,  the  common  council  are  required  to  ascertain  the  whole 
amount  of  such  costs,  &c.,  and  to  cause  to  be  made  a  just 
and  equitable  assessment  thereof  upon  the  owners  of  all  the 
lands  and  real  estate  intended  to  be  benefited  thereby,  in  pro- 
portion, as  nearly  as  may  be,  to  the  advantage  eacli  shall  be 
deemed  to  acquire. 

The  first  objection  taken  to  the  validity  of  the  assessment 
is,  that  it  does  not  appear  by  the  report  of  the  commissioners 
to  have  been  made  by  them  upon  all  the  laud,  &c.,  as  re- 
•quired  by  the  section  just  referred  to. 

It  appears  by  reference  to  the  report  itself,  that  this  ob- 
jection is  fully  sustained. 

Instead  of  showing  upon  its  face  that  the  commissioners 
had  done  what  the  act  demands,  viz. :  that  they  had  made  a 
just  and  equitable  assessment,  &c.,  upon  the  owners  of  all 


172  I^EW  JERSEY  SUPREME  COURT. 

State,  Little  et  al.,  Pros.,  v.  Mayor  and  Common  Council  of  Newark. 

the  lauds  and  real  estate  intended  to  be  benefited,  in  propor- 
tion as  nearly  as  might  be,  to  the  advantage  each  was  deemed 
to  have  acquired,  the  report  amounts  to  nothing  more  than 
that  the  assessment  is  justly  and  equitably  made  by  the  com- 
missioners, and  according  to  the  best  of  their  skill  and  judg- 
ment. 

It  may  perhaps  be  gathered  from  this  report,  that  the 
assessment  in  question  was  made  upon  the  owners  of  all  the 
lands  and  real  estate  intended  to  be  benefited,  but  it  nowhere 
appears  that  the  owners  were  assessed  in  the  proportion  re- 
quired by  the  charter. 

The  commissioners  are  bound  in  such  a  case,  to  exercise 
their  judgment  in  order  to  determine  the  advantage  or  benefit 
to  each  particular  owner,  and  their  report  must  show  that 
the  assessment  has  been  made  upon  each  owner,  as  nearly  as 
might  be,  in  proportion  to  the  benefit  received.  State  v.  New- 
ark, 1  Butcher  399;  State  v.  Jersey  City,  2  lb.  444;'  State 
v.  City  of  Hudson,  3  J6.  214 ;  State  v.  Jersey  City,  4  Ih.  500 ; 
State  v.  City  of  Hudson,  5  Ih.  105;  State  v.  Town  of  Bergen, 
1  Vroom  307 ;  State  v.  Gardner  et  aL,  5  lb.  327. 

It  has  been  suggested  on  the  part  of  the  city  that  although 
the  objection  just  considered  might  have  prevailed  prior  to 
the  act  of  April  6th,  1871,  relative  to  the  writ  of  certiorari, 
it  is  otherwise  since  the  passage  of  that  act. 

The  part  of  the  act  referred  to  is  the  second  section,  which 
provides  that  it  shall  be  the  duty  of  the  court  in  any 
certiorari,  &c.,  to  determine  disputed  questions  of  fact  as  well 
as  law,  and  according  to  the  justice  of  the  case  to  reverse  or 
affirm,  in  part  or  in  the  whole,  any  tax  or  assessment,  &c., 
and  to  inquire  into  the  facts  by  deposition,  &c.  {Laws,  1871, 
pjD.  124,  125.) 

Without  undertaking  now  to  decide,  whether  the  radical 
defect  in  this  report  might  have  been  supplied  by  evidence 
under  the  provisions  of  the  act  of  1871,  it  is  sufficient  to  say 
that  nothing  of  the  kind  has  been  done. 

No  testimony  has  been  laid  before  us  intended  to  show 
that  the  assessment  was  in  fact  made  as  the  charter  requires^ 


FEBRUARY  TERM,  1873.  173 

Steward  v.  Sears. 

There  is  no  disputed  question  of  fact  in  the  case  as  it  is  now 
before  us.  The  assessment  is  therefore  to  be  dealt  with  pre- 
cisely as  if  the  act  of  1871  had  not  been  passed. 

It  is  further  objected  to  this  assessment,  that  it  does  not 
appear  by  the  report  that  the  commissioners  by  whom  it  was 
made,  were  all  disinterested  freeholders  of  said  city,  residing 
in  different  wards. 

The  charter  requires  the  common  council  to  appoint  five 
disinterested  freeholders  of  the  city,  residing  in  different  wards, 
commissioners  to  make  any  such  assessment  as  the  one  now 
before  the  court,  (Laios,  1857,  p.  167,  §  106,)  and  it  must 
appear  on  the  face  of  the  proceedings  that  the  commissioners 
possessed  the  required  qualifications.  The  State,  Durant,  pros. ^ 
V.  Jersey  Oity,  1  Dutcher  310. 

This  appears  as  to  all  the  commissioners  originally  appointed. 
But  one  of  these  having  resigned,  Mr.  Sayer  was  appointed  in 
his  place,  and  he  having  died,  Mr.  Lord  was  appointed  to  fill 
the  vacancy  caused  by  his  death.  Now  while  it  does  suffi- 
ciently appear  by  the  resolution  appointing  Mr.  Lord,  that  he 
was  at  that  time  a  resident  of  the  city,  and  of  a  different  ward 
from  any  of  the  others,  it  does  not  appear,  either  from  the 
report  or  from  any  part  of  the  proceedings  before  us,  that  he 
was  a  disinterested  freeholder.  This  is  a  fatal  omission.  State, 
V.  Newark,  1  Dutcher  399. 

Assessment  set  aside,  with  costs.. 

ClTEi)  in  State,  Harris,  pros.,  v.  Jersey  Oity,  9'  Vr.  55 ;  State,  Hyerson, 
pros.,  V.  Passaic,  9  Vr.  171. 


STEWAKD  V.  SEARS. 


The  plaintiff  sued  in  the  justice's  court  on  a  promissory  note.  The 
cause  was  tried  on  the  return  day  of  the  summons.  No  statement  of 
demand  was  filed,  but  the  defendant,  in  his  offset,  gave  the  plaintitl' 
credit  for  the  note,  and  it  was  received  in  evidence  without  objection. 
The  defendant  having  appealed  to  the  Court  of  Common  Pleas,  and 
the  appeal  having  been  tried  in  his  absence — 
Held,  that  the  judgment  of  the  pleas  would  not  be  reversed  on  th« 

Vol.  VII.  11 


174  NEW  JERSEY  SUPREME  COURT. 

Steward  v.  Sears. 

ground  tliat  no  demand  had  been  filed,  and  that  no  motion  having 
been  made  before  the  justice,  or  in  the  Court  of  Common  Pleas  for  a 
non-suit,  for  that  reason  the  objection  was  waived. 


On  ceiiiorari  to  Mercer  pleas. 

Argued  at  November  Terra,  1872,  before  Justices  "Wood- 
hull,  Depue  and  Vax  Syckel. 

For  plaintiff  in  certiorari,  F.  Kingman. 

For  defendant,  E.  W,  Evans. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  This  cause  was  tried  iu  the  court  for  the  trial 
t)f  small  causes,  before  a  jury  in  the  presence  of  the  parties. 
After  hearing  witnesses,  a  verdict  was  found  for  the  ))laiutiff, 
and  judgment  given  accordingly,  from  which  an  appeal  was 
taken  by  the  defendant  to  the  Court  of  Common  Pleas.  In 
the  Court  of  Common  Pleas,  the  cause  was  tried  in  the 
absence  of  the  defendant,  and  resulted  in  a  judgment  for  the 
plaintiff.  To  review  these  proceedings,  a  writ  of  cei-tiorari 
was  sued  out,  directed  to  the  Court  of  Common  Pleas. 

The  only  reason  which  was  relied  on  for  reversal,  is  that 
¥10  statement  of  demand  was  filed  by  the  plaintiff. 

The  action  was  brought  on  a  promissory  note.  The  justice, 
in  the  transcript  sent  up  with  the  appeal,  certified  that  tiie 
plaintiff  filed  a  statement  of  demand,  and  the  defendant  his 
•offset  on  the  returu  day  of  the  summons.  In  answer  to  a 
xule  taken  iu  this  court,  the  justice  has  certified  that  in  fact 
■no  statement  of  demand  was  filed,  and  that  the  entry  in  his 
docket,  and  statement  in  his  transcript,  that  a  demand  was 
filed,  are  incorrect,  and  were  inadvertently  made. 

The  cause  was  tried  on  the  return  day  of  the  summons, 
and  the  note  sued  on  was  then  before  the  justice,  and  was 
offered  in  evidence  without  objection.  The  defendant,  in  his 
offset,  gave  the  plaintiff  credit  for  a  note  which  is  admitted 
to  be  the  same  note  sued  on.  No  objection  was  taken 
J^efore  the  justice  for  the  want  of  a  statement  of  demand. 


FEBRUARY  TERM,  1873.  175 

Steward  v.  Sears. 

nor  was  any  application  made  to  the  Court  of  Common  Pleas 
for  a  non-suit  on  that  ground. 

It  is  manifest  that  the  parties  regarded  the  note,  which  was 
before  the  justice,  as  a  statement  of  demand.  No  controversy- 
was  made  as  to  the  amount  of  the  note,  or  the  liability  of  the 
defendant  upon  it.  Both  these  matters  were  expressly  ad- 
mitted in  the  set-off  which  was  filed. 

The  omission  to  file  a  formal  statement  of  demand,  if  the 
objection  had  been  made  before  the  justice,  could  have  been 
supplied  on  the  spot.  The  defendant,  on  the  trial  of  the  cause 
on  appeal,  if  he  had  attended,  might  have  applied  for  a  non- 
suit on  that  ground.  If  he  had  done  so,  the  Court  of  Com- 
mon Pleas  had  power  to  permit  an  amendment,  by  filing  a 
statement  of  demand.  Nix.  Dig.  475,  §  105.*  At  either  of 
these  stages  in  the  progress  of  the  cause,  opportunity  might 
have  been  had  to  raise  the  objection.  If  it  had  been  made  on 
either  occasion,  the  defect  could  readily  have  been  remedied, 
and  the  cause  proceeded  with  regularity  to  a  trial  on  the  merits. 
We  are  asked,  under  these  circumstances,  to  reverse  on  a  mere 
formal  objection,  which  in  no  wise  touches  the  merits  of  the 
case. 

It  has  been  held  that  going  to  trial  under  an  agreement, 
that  the  note  sued  on  should  be  considered  as  a  statement  of 
demand,  concluded  the  defendant  from  objecting  afterwards  on 
certiovari,  that  no  demand  was  filed.  Layton  v.  Davis,  1 
Penn.  405  o  ;  [Harr.  ecL,  p.  309.)  So  also  where  the  objection 
is  such  as  that  the  party  may  have  relief  on  the  appeal,  neglect 
to  seek  such  relief  on  the  trial  of  the  appeal  will  conclude  him 
from  making  it  a  ground  o-f  reversal  on  certiorari.  Gould  v. 
Brown,  4  Halst.  163.  Other  instances  of  waiver  implied  from 
acquiescence  by  proceeding  with  the  trial  of  the  cause  without 
making  objections,  which,  if  made,  would  be  fatal,  are  to  be 
found  in  the  cases.  Cook  v.  Hendrickson,  1  Penn.  343 ;  Martin 
v.  Steele,  2  Ih.  718;  Dallas  v.  Hendry,  lb.  973  ;  Foulkes  v. 
Young,  1  Zah.  438 ;   Coyle  v.  Coyle,  2  Dutcher  132. 

The  principle  may  be  said  to  be  general,  that  objections  to 

*  Bev.,  p.  5b9,  ^  112. 


176  NEW  JERSEY  SUPREME  COURT. 

Kloepping  and  wife  ads.  Stellmacher. 

the  form  of  proceedings  which  do  not  question  the  jurisdiction 
of  the  court,  or  the  plaintiff's  right  to  recover,  must  be  made 
at  the  trial.  If  not  taken  then,  they  are  considered  to  have 
been  waived.     Jacques  v.  Hulif,  1  Harr.  38. 

The  cases  cited  were  all  decided  before  the  passage  of  the 
statute  permitting  amendments  to  be  made  by  justices  of  the 
peace,  and  by  the  Court  of  Common  Pleas  on  the  trial  of 
appeals.  They  show  the  principle  by  which  the  courts  were 
governed,  independently  of  that  statute.  By  that  statute  a 
convenient  and  ample  mode  of  remedying  formal  defects  in  the 
pleadings  in  justice's  courts  is  provided,  which  was  designed 
to  relieve  parties  from  a  miscarriage  of  justice  on  account  of 
defects  of  that  character.  In  such  cases  the  court  ought  not  tO' 
reverse  on  certiorari,  where  the  defendant  appears  to  the  action, 
and  proceeds  to  trial  without  making  objection,  at  a  time  when 
by  so  doing,  the  defect  might  be  remedied  by  amendment, 
especially  when,  as  in  this  case,  the  demand  of  the  plaintiff  is 
expressly  admitted  in  the  set-off  filed. 

The  judgment  is  aflSrmed. 

Cited  in  3fcQuarle  v.  Emmons,  9  Vj:  397 ;  Burk  v.  Shreve,  10  Vr.  214 
Sutts  V.  French,  13  Vr.  397  ;  Cole  &  Taylor  v.  Oliver,  15  Vr.  212. 


KLOEPPING  AND  WIFE  ads.  STELLMACHER. 

1.  When  a  summons  in  ejectment  has  been  issued  to  the  sheriff,  and 
placed  in  his  hands,  it  may  be  served  by  any  person,  by  direction  of 
the  sheriff,  without  any  formal  deputation  in  writing. 

2.  An  affidavit  of  the  time  and  manner  of  service  of  a  summons  in  eject- 
ment is  required,  whether  the  service  be  made  by  the  sheriff  or  a  third 
person. 

3.  If  it  be  shown  by  depositions,  taken  under  a  rule  of  court,  that  the 
service  of  a  summons  in  ejectment  was  in  conformity  to  the  law,  and 
that  the  defendant  had  notice  of  the  suit  and  its  object,  a  judgment 
by  default  will  not  be  vacated,  although  the  writ  was  returned  with- 
out an  affidavit  of  service,  but  an  amendment  will  be  permitted  by 
filing  an  affidavit  nunc  pro  tunc,  if  it  appear  that  the  defendant  has 
no  defence. 


FEBRUARY  TERM,  1873.  177 

Kloepping  and  wife  ads.  Stellmacher. 

A.  A  decree  of  the  Court  of  Chancery,  that  a  sheriff's  deed  should 
become  void,  and  the  purchaser  reconvey  on  the  payment  to  him  of  a 
certain  sum  within  a  specified  time,  is  i  ot  such  a  decree  as  becomes  a 
conveyance  by  force  of  the  fifty -sixth  section  of  the  chancery  act; 
and  an  unaccepted  tender  of  the  sum  named,  after  the  day  fixed,  and 
after  ejectment  brought  to  recovery  possession  under  tlie  deed,  will 
not  extinguish  the  deed  as  a  security,  and  enable  the  defendant  to 
defend  under  the  decree. 


On  application  to  open  a  judgment  by  default. 

Argued  at  November  Term,  1872,  before  Justices  Wcx>D- 
HULL,  Depue  and  Van  Syckel. 

•  For  the  motion,  S.  B.  Ransom. 

Contra,  F.  B.  Ogden. 

Tiie  opinion  of  the  court  was  delivered  by 

Depue,  J.  The  summons  in  ejectment  was  issued  on  the 
18th  of  December,  1871,  returnable  on  the  22d  of  the  same 
month,  and  was  put  in  the  hands  of  the  sheriff  of  Hudson 
for  service.  The  day  for  the  return  was  altered  by  the 
sheriiF,  to  suit  his  convenience,  to  the  29th  of  December. 
The  writ  was  served  on  the  defendants  on  the  18th  of  De- 
cember, and  is  returned  with  an  endorseiuent,  "  duly  served 
on  both  defendants,  personally,  December  18th,  1871," 
signed  by  the  sheriff.  The  writ  was  not  served  by  the 
sheriff,  but  by  one  Hugh  O.  Johnson,  who  claims  to  have 
been  specially  deputized  by  the  sheriff  to  serve  the  writ. 
The  declaration  was  filed  on  the  25th  of  January,  1872,  judg- 
ment was  entered  for  want  of  a  plea,  and  a  writ  of  habere 
facias  issued  thereon,  which  was  executed  on  the  31st  of  the 
same  month,  by  putting  the  plaintiff  in  possession. 

Application  is  now  made  to  set  aside  the  judgment  as 
irregularly  entered,  and  for  an  order  of  restitution;  and,  fail- 
ing in  such  application,  to  open  the  judgment  for  the  pur- 
pose of  letting  in  a  defence. 

The  irregularities  relied  on  are,  the  alteration  in  the  return 


178  NEW  JERSEY  SUPREME  COURT. 

Kloepping  and  wife  ads;  Stellmac.her. 

day  named  in  the  writ,  as  originally  issued,  and  the  service 
of  the  summons  by  a  person  not  legally  authorized  to  make 
such  service. 

The  alteration  in  the  summons  was  made  without  the 
knowledge  of  the  plaintiff's  attorney.  The  practice  of  sher- 
iffs in  changing  the  return  day  to  suit  their  convenience  in 
making  service,  is  one  of  long  standing,  and  in  many  cases 
is  necessary  to  enable  the  sheriff  to  obtain  service  of  the 
writ.  Such  alterations  do  not  avoid  the  writ  for  irregularity. 
Q-owther  v.  Wheat,  8  31od.  243;  Sloan  v.  Wattles,  13  J.  R. 
158 ;  Sullivan  v.  Alexander,  18  J.  R.  S;  1  Cow.  42,  n. 

Wh-atever  effect  the  want  of  consent  by  the  attorney  to  the 
alteration  might  have,  in  an  action  brought  by  the  plaintiff 
against  the  sheriff  for  failure  to  promptly  serve  the  process, 
it  will  not  avoid  it  as  in  favor  of  the  defendant,  if  the  plain- 
tiff's attorney  adopts  the  writ  as  served. 

The  authority  of  the  person  by  whom  the  service  was 
made  was  merely  by  parol.  No  deputation  in  writing  was 
endorsed  upon  tiie  writ.  By  the  common  law,  the  appoint- 
ment of  a  bailiff  of  a  liberty  with  general  authority  to  serve 
and  return  writs,  was  required  to  be  in  writing  and  under 
seal.  Carr  v.  Donne,  2  Ventris  193  ;  Hamon  v.  Lord  Jer- 
myn,  1  Lord  Raym.  189. 

But  the  sheriff  might  authorize  his  servant  or  bailiff  to 
execute  any  particular  writ,  either  by  delivering  him  the  writ 
with  a  verbal  command,  without  any  precept  in  writing,  or 
by  a  warrant  in  writing.     Keihoay  86  ;  Sewell  on  Sheriff's  103. 

In  practice,  the  usual  course  was  for  the  sheriff  to  deliver 
the  writ  to  the  bailiff,  with  an  endorsement  of  the  name  of 
the  bailiff  upon  it,  or  to  execute  a  special  warrant  to  him  for 
that  purpose.  The  production  of  the  writ  with  such  an 
endorsement  was  held  sufficient  evidence  of  authority  to  hold 
the  sheriff  for  the  acts  of  the  bailiff.  Francis  v.  Neave,  3  B. 
&  B.  26 ;  Scott  v.  Marshall,  2  C.  &  J.  238. 

In  this  state  the  practice  has  been  to  endorse  a  deputatioQ 
in  writing  on  the  writ.  Whether  the  service  of  a  writ  in 
ordinary  cases  by  a  special  deputy  under  a  verbal  authority 


FEBRUARY  TERM,  1873,  179 

Kloepping  and  wife  ads.  Stellmacher. 

would  be  sustained,  it  is  not  necessary  to  decide.  The  pro- 
tection of  sheriffs  from  the  assumption  of  third  persons  to  act 
in  their  names,  as  well  as  the  safety  of  parties  from  the  ille- 
gal a^ts  of'persons  having  no  official  character,  would  require 
that  the  authority  of  such  persons  to  discharge  the  official 
duties  of  the  sheriff  should  be  in  writing. 

But  whatever  be  tiie  correct  practice  with  respect  to  the 
service  of  ordinary  process,  the  mode  of  serving  process  in 
actions  of  ejectment,  is  peculiar  to  that  action.  Before  the 
practice  act  of  1855,  the  declaration  in  ejectment  was  the 
commencement  of  the  action,  and  might  be  served  by  any 
person,  even  by  the  lessor  himself.  Den  v.  Feyi,  5  FlalsL 
237. 

By  the  forty-seventh  section  of  the  act  referred  to,  all 
fictions  in  actions  of  ejectment  were  abolished,  and  it  was 
provided  that  thereafter  the  action  should  be  commenced  by 
summons,  in  the  name  of  the  person  claiming  the  premises^ 
as  plaintiff,  and  against  the  tenant  in  possession,  as  defend- 
ant.    Nix.  Dig.  739,  §  167.* 

The  form  of  the  summons,  as  given  in  the  schedule  an- 
nexed to  the  act,  contains  a  direction  to  the  sheriff  of  the 
county,  as  in  cases  of  writs  in  personal  actions,  which  implies 
that  the  writ  should  go  into  the  sheriff's  hands.  Nix.  Dig. 
746. t  The  only  provision  for  the  mode  of  service,  is  that 
contained  in  the  section  referred  to,  in  which  it  is  prescribed 
that  the  summons  shall  be  served  in  the  same  manner  as 
declarations  in  ejectment  had  theretofore  been  served.  When 
the  summons  has  been  issued  to  the  sheriff,  and  placed  in  his 
hands,  it  may  be  served  by  any  person  with  his  privity  and 
consent,  without  a  formal  deputation  in  writing.  Whether 
the  service  be  made  by  the  sheriff'  or  a  third  person,  the  sum- 
mons must  be  returned  with  an  affidavit  of  the  time  when, 
and  manner  in  which,  the  service  was  made.  That  such  affi- 
davit is  still  necessary,  is  obvious  from  the  fact  that  no  mode 
©f  returning  the  writ  is  substituted  for  the  former  practice, 
with  respect  to  declarations  in  ejectment ;  and  the  fifty-fourth 


*  Rev.,  p.  326,  ^U,  23.     f  ^ev.,  p.  333. 


180  NEW  JERSEY  SUPREME  COURT. 

Kloepping  and  wife  ads.  Stellmacher. 

section,  in  direct  terms,  recognizes  the  necessity  of  an  aflfidavit 
to  the  return. 

In  tliis  case  no  affidavit  was  filed ;  but  it  appears  by  the 
depositions  taken  under  a  rule  of  the  court,  that  the  summons 
was  served  in  precise  conformity  to  the  law ;  and  that  the 
defendants  had  actual  notice  of  the  suit  and  its  object.  In 
this  respect,  the  case  differs  from  Den  v.  Fen,  5  Halsi.  237. 
Under  the  circumstances,  an  amendment  would  have  been 
allowed  if  a  motion  had  been  made  to  set  aside  the  writ  for 
a  defective  return.     DetTickson  v.  White,  3  Vroom  137. 

The  amendment  may  still  be  made,  although  judgment  has 
been  entered,  or  at  least  the  aid  of  the  court,  in  opening  the 
judgment,  be  denied. 

In  disposing  of  this  application,  the  court  will  be  controlled 
by  the  consideration,  whether  the  defendants  have  any  legal 
defence  to  the  action. 

The  facts  in  the  case  are  these.  The  premises  were  origi- 
nally the  property  of  the  defendants,  and  were  sold  at  sherifJi's 
sale  by  virtue  of  an  eKCcution  against  them.  The  plaintiff 
having  obtained  a  deed  from  the  sheriff,  a  bill  was  filed  in 
the  Court  of  Chancery  by  the  defendants  to  have  the  deed  set 
aside,  on  the  ground  that  the  sale  was  fraudulently  obtained. 
By  a  deeree  dated  the  23d  of  September,  1871,  the  Chan- 
cellor decreed  that  upon  payment  to  the  plaintiff  of  a  certain 
sum  of  money,  which  represented  the  purchase  money  paid  to 
the  sheriff,  and  expenditures  for  taxes,  repairs,  and  the  dis- 
charge of  other  liens  upon  the  premises,  together  with  taxed 
costs,  within  sixty  days  from  the  date  of  the  decree,  the 
sheriff's  deed  should  be  declared  void,  and  that  the  plaintiff 
should  reconvey.  Kloepping  and  Wife  v.  Stellmacher,  6  C  E. 
Gh'een  328.  A  tender  was  not  made  within  the  time  speci- 
fied in  the  decree  j  in  fact,  no  effort  was  made  to  make  a  ten- 
<3er  until  the  sueceeding  February,  which  was  after  this  suit 
was  commenced. 

The  decree  of  the  Chancellor  was  not  such  as  became  a  con- 
veyance by  force  of  the  fifty-sixth  section  of  the  chancery  act. 
J^ix.  Dig.  112.*     Its  effect,  construing  it  most  favorably  for 

*Beo.,  p.  115,  I  63. 


FEBRUARY  TERM,  1873.  181 

State,  National  Eailway  Co.,  Pros.,  v.  Easton  &  Amboy  R.  E..  Co. 

the  defendant,  was  to  declare  the  sheriif's  deed  to  be  a  mort- 
gage, and  to  designate  a  time  within  which  redemption  might 
be  made.  A  tender  of  the  money  to  be  paid  on  redemption 
within  the  time  limited,  might  possibly  have  operated  to  ex- 
tinguish the  lien  of  the  deed  as  a  mortgage,  and  thus  have 
opened  tlie  way  for  a  defence  to  an  action  of  ejectment  in  a 
court  of  law.  But  an  unaccepted  tender  made  after  the  pre- 
scribed time,  cannot,  in  law,  have  such  effect.  Shields  v. 
Lozear,  5  Vroom  496. 

The  relief  of  the  defendants  (if  any)  must  be  sought  in  the 
Court  of  Chancery,  on  an  application  for  an  enlargement  of 
the  time  for  redemption.  In  such  proceedings  equities  that 
have  arisen  since  the  default  may  be  considered,  and,  if  re- 
demption is  there  obtained,  restitution  may  be  had  by  the  pro- 
cess of  that  court.     Shields  v.  Lozear. 

The  judgment  is  erroneous  in  including  taxed  costs.  Nix. 
Dig.  740,  §  174.*  To  that  extent  let  it  be  set  aside,  and  a 
rule  be  entered  for  the  amendment  of  the  return  by  filing, 
nunc  pro  tunc,  the  proper  affidavit  of  service. 

The  rule  to  show  cause  is  discharged  without  costs. 

Cited  in  Meyer  v.  Bishop,  12  C.  E.  Or.  141. 


THE  STATE,  THE  NATIONAL  EAILWAY  COMPANY,  PEOSE- 
CUTOES,  v.  THE  EASTON  AND  AMBOY  EAILEOAD  COM- 
PANY. 

1.  The  charter  of  the  E.  &  A.  Co.  distinguishes  between  the  owner  and 
person  interested  in  the  proceedings  to  condemn  lands.  By  owner  is 
meant  the  person  having  ^^me  legal  estate  which  the  company  pro- 
poses by  the  condemnation  to  acquire.  Under  the  expression,  "  per- 
sons interested,"  are  included  not  only  the  owner  whose  estate  it  is 
intended  to  acquire,  but  also  other  persons  having  some  independent 
right  or  interest  therein,  or  lien  or  encumbrance  thereon. 

2.  The  proceeding  for  condemnation  is  strictly  between  the  company  and 
the  persons  who  are  made  parties  to  it.     The  omission  of  the  owner  of 

*Bev.,  p.  333,  ^  50. 


182         NEW  JERSEY  SUPREME  COURT. 

State,  National  Kailway  Co.,  Pros.,  v.  Easton  &  Amboy  E.  R.  Co. 

any  estate  in  tlie  lands  or  part  owner  of  the  fee,  or  the  holder  of  any 
encumbrance  will  not  invalidate  the  proceeding  as  against  such  per- 
sons as  are  made  parties.  The  consequence  will  only  be  that  as 
against  the  omitted  persons  the  condemnation  will  be  nugatory. 

3.  The  trustee  of  a  trust  in  lands,  not  executed  by  the  statute,  is  the  pro- 
per party  to  proceedings  to  condemn  the  lands;  the  cestui  que  (rust 
need  not  be  made  a  party. 

4.  The  condemation  of  lands  owned  by  one  railroad  company — not  used 
for  railroad  purposes — by  another  company  for  use  in  the  construc- 
tion of  a  railroad,  will  be  unavailable  to  condemn  the  franchises  of  the 
former.  All  that  will  be  acquired  will  be  a  right  of  way,  and  inci- 
dentally, the  power  to  cross  the  track  of  the  former  where  the  routes 
of  the  two  roads  cross  each  other. 


Oil  certiorari  to  review  appointment  of  commissioners  to 
condemn  lands. 

Argued  at  November  Term,  1872,  before  Justices  Wood- 
hull,  Depue  and  Van  Syckel. 

For  the  prosecutor,  R.  Gilchrist,  Attorney- General. 

Contra,  T.  K  McCarter. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  On  the  22d  of  July,  1872,  application  was 
made  to  a  justice  of  the  Supreme  Court  by  the  Easton  and 
Amboy  Railroad  Company,  for  the  appointment  of  commis- 
sioners to  condemn  certain  lands,  situate  in  the  county  of 
Somerset,  which  were  required  by  the  company  for  the  con- 
struction of  their  railroad.  The  legal  title  to  the  lands  wa& 
in  one  Abraham  Smith,  who  had  entered  into  articles  of 
agreement  on  the  28th  of  June,  1872,  to  convey  a  farm  con- 
taining seventy  acres  of  land,  of  which  the  strip  required  by 
the  company  was  a  part,  to  one  Van  Doren,  the  conveyance 
to  be  made  on  the  first  day  of  the  following  September.  Van 
Doren,  on  the  28th  of  June,  endorsed  on  the  articles  of 
agreement  an  assignment  of  all  his  right  and  interest  in  the 
same  to  Robert  Crane,  of  Columbia,  '^Trustee"  for  the  con- 


FEBRUARY  TERM,  1873.  183 

State,  National  Railway  Co.,  Pros.,  v.  Easton  &  Amboy  R.  R.  Co. 

sideration  expressed  of  one  dollar.  The  articles  of  agreement 
and  assignment  were  put  upon  record  before  the  a[)plication 
was  made,  and  are  recited  in  the  statement  of  title  laid  before 
the  justice.  The  justice  fixed  the  5th  of  August  as  the  day 
for  making  the  appointment  of  commissioners,  and  directed 
notice  of  the  application  to  be  given  to  Smith  and  Crane,  and 
on  the  day  named  proof  being  made  that  notice  liad  been 
given  as  directed,  proceeded  to  appoint  commissioners.  Im- 
mediately on  the  making  of  this  appointment,  the  National 
Railway  Company  sued  out  a  writ  of  certiorari  to  set  aside  the 
appointment,  on  the  ground  that  that  company  should  have 
been  made  a  party  to  the  application,  and  should  have  had 
notice  of  the  intended  appointment. 

It  appears  from  the  depositions,  that  Van  Doren  and  Crane 
were  acting  in  the  capacity  of  agents  for  the  National  Rail- 
way Company  in  acquiring  the  right  of  way  for  their  projected 
railroad. 

On  the  same  day  that  Van  Doren  made  the  assignment  of 
his  rights  under  the  article  of  agreement  to  Crane,  the  latter 
executed  a  declaration  of  trust,  declaring  that  he  held  the  said 
contract  and  other  contracts  as  trustee,  to  hold  for  the  use  and 
benefit  of  the  National  Railway  Company,  and  to  be  trans- 
ferred at  such  time,  and  to  such  persons,  and  in  such  manner 
as  that  company  should  order  or  request. 

On  the  23d  of  July,  1872,  Smith  conveyed  the  farm  directly 
to  Crane,  who,  on  the  30th  of  August,  by  a  formal  deed  of 
conveyance,  conveyed  to  the  National  Railway  Company  a 
portion  thereof,  containing  seventeen  acres  and  thirteen  one- 
hundredths  of  an  acre. 

The  survey  of  the  route  of  the  National  Railway  Company 
through  the  farm  was  filed  on  the  10th  of  March,  1872,  nearly 
two  months  before  that  of  the  defendants  was  filed. 

The  only  question  discussed  on  the  argument  which  we 
deem  it  necessary  to  notice,  is  whether  the  defendants  could, 
in  the  situation  of  the  title  to  the  premises  as  it  was  when  the 
application  was  made,  proceed  to  condemn  the  lands  without 
making  the  National  Railway  Company  a  party,  or,  at  least, 
giving  to  them  the  statutory  notice,  as  a  "person  interested." 


184         NEW  JERSEY  SUPREME  COURT. 

State,  National  Railway  Co.,  Pros.,  v.  Easton  &  Amboy  R.  R.  Co. 

The  defendants'  charter  provides  that  if  the  company,  or  its 
agents,  cannot  agree  with  the  owner  or  owners  of  required 
lands  or  materials  for  the  use  or  purchase  thereof,  a  particular 
description  of  the  land  or  materials  so  required  shall  be  given 
in  writing,  under  the  oath,  &c.,  and  also  the  name  or  names 
of  the  occupant  or  occupants,  if  any  there  be;  and  of  the 
owner  or  owners,  if  known  ;  and  their  residence,  if  the  same 
can  be  ascertained,  to  one  of  the  justices  of  the  Supreme  Court 
of  this  state,  who  shall  cause  the  company  to  give  notice 
thereof  to  the  persons  interested,  if  known,  and  in  this  state, 
or  if  unknown,  and  out  of  this  state,  to  make  publication 
thereof  as  he  shall  direct.  Thereupon  commissioners  are  to 
be  appointed  to  examine  and  appraise  the  said  land  or  mate- 
rials in  controversy,  upon  the  specified  notice  to  the  persons 
interested. 

The  charter  plainly  distinguishes  between  the  owner  and 
persons  interested,  throughout  the  entire  proceedings  for  con- 
demnation as  provided  for  in  the  seventh  and  eighth  sections. 

By  owner  is  meant  the  person  having  some  legal  estate 
-which  the  company  proposes  by  the  condemnation  to  acquire. 
Under  the  more  comprehensive  expression  of  persons  inter- 
ested, are  included  not  only  the  person  in  whom  is  vested  the 
legal  title  which  the  company  proposes  to  acquire  as  indicated 
by  their  application,  but  also  other  individuals  having  some 
independent  right  or  interest  therein,  not  amounting  to  an 
actual  legal  estate,  such  as  an  easement  of  a  right  of  way, 
inchoate  rights  of  dower,  or  curtesy,  or  encumbrances,  such 
by  judgments  or  mortgages,  which  are  charges  or  liens  on  the 
legal  estate.  The  object  attained  in  making  the  latter  class  of 
individuals  parties  to  the  proceeding.s,  is  that  their  interests 
may  be  extinguished  by  payment  out  of  the  money  awarded 
or  compensated  for  under  the  provisions  of  the  general  statute, 
which  authorizes  the  court  into  which  the  money  may  be 
paid,  to  make  allowance  out  of  the  fund  in  satisfaction  of  such 
interest.     Nix.  Dig.  863,  §  55.* 

The  proceeding  for  condemnation  is  strictly  between  the 

*Bev.,p.897,  §312. 


FEBRUARY  TERM,  1873.  185 

State,  National  Railway  Co.,  Pros.,  v.  Easton  &  Amboy  R.  R.  Co. 

company  and  the  persons  who  are  made  parties  to  it.  The 
omission  of  the  owner  of  any  estate  in  the  lands,  or  any  part 
owner  of  the  fee,  or  of  the  holder  of  any  lien,  or  encum- 
brance thereon,  whose  estate  or  interest  is  essential  to  a  per- 
fect and  indefeasible  title  in  the  company,  will  not  invalidate 
the  proceeding  as  against  such  persons  as  are  made  parties. 
The  consequence  will  be  merely  that  as  against  such  omitted 
persons,  the  condemnation  will  be  nugatory.  To  this  extent 
the  company  proceeds  at  their  peril. 

If,  when  the  petition  was  presented  to  the  justice,  the 
prosecutors  were  the  owners  of  any  legal  estate  in  the  prop- 
erty, or  if  they  had  then  an  interest  therein  which  was  not 
represented  in  the  person"  of  Crane,  their  remedy  would  nofc 
be  by  writ  of  certiorari.  Having  given  notice  of  their  rights 
to  avoid  equities,  they  might  safely  rest  and  suffer  the  con- 
demnation to  go  on  as  proceedings,  by  which — not  being 
parties — they  would  be  in  no  wise  affected.  Ross  v.  E.  & 
S.  R.  R.  Co.,  1  Green's  Ch.  422. 

But  on  examining  the  depositions,  it  will  be  found  that 
the  proceedings,  as  affecting  the  interest  of  the  prosecutors, 
considering  them  as  owners  of  an  equitable  estate  in  the  lands^ 
are  in  every  respect  regular. 

Smith  was  properly  described  in  the  petition  as  the  owner. 
Neither  Crane  nor  the  National  Railway  Company  were 
owners  in  a  legal  sense.  By  the  articles  of  agreement.  Van 
Doren  became  entitled  merely  to  acquire  title  at  a  future  day,, 
on  the  payment  of  the  unpaid  consideration  money.  Crane,, 
by  the  assignment,  obtained  nothing  more.  The  subsequent 
transfers  of  the  legal  title,  by  conveyances  made  after  the 
proceedings  were  commenced  by  presenting  the  application, 
cannot  impair  the  regularity  of  proceedings  which  were  then 
in  conformity  with  the  law. 

Crane  was  named  in  the  petition  as  a  party,  and  the  nature 
of  his  interest  is  set  out.  He  had  legal  notice  of  the  in- 
tended appointment.  The  fact  that  he  was  trustee  for  any 
one,  appeared  on  the  record  only  as  he  was  designated  trustee 
in  the  assignment.     What  the  nature  of  the  trust  was,  and 


186  NEW  JERSEY  SUPREME  COURT. 


State,  National  Railway  Co.,  Pros.,  v.  Easton  &  Amboy  R.  R.  Co. 

for  whose  benefit  it  was  created,  were  not  shown  by  the 
record.  An  examination  of  the  papers  made  exhibits,  dis- 
closes the  fact  that  the  rights  of  the  prosecutors,  under  the 
arrangement  between  them  and  Crane,  were  merely  such  as 
exist  in  "equity  in  a  cestui  que  trust,  to  compel  the  perform- 
ance by  the  trustee  of  the  obligations  springing  from  the 
fiduciary  relation.  If  any  interest  susceptible  of  legal  recog- 
nition was  created  by  the  agreement  for  a  conveyance,  such 
interest  cannot  be  regarded  as  subsisting  as  a  distinctive 
right  in  the  property  after  the  period  when  it  became  vested 
in  Crane.  In  courts  of  law,  the  trustee  for  all  the  purposes 
of  litigation  is  the  representative  of  the  cestui  que  trust.  Dam- 
ages on  opening  a  street  are  to  be  assessed  to  the  trustee,  and 
he  may  prosecute  a  writ  of  certiorari  in  liis  own  name  if 
the  assessment  is  not  so  made.  State,  Woodruff,  j^^'os.,  v. 
Orange,  3  V7-oom  49. 

In  proceedings  of  the  character  of  those  now  before  the 
court,  it  has  been  held  that  the  trustee  is  the  proper  party, 
and  not  the  cestui  que  trust.  Davis  v.  Charles  River  Branch 
R.  R.  Co.,  11  .Oush.  506;  Hawkins  v.  County  Commissioners, 
2  AUen  254.  * 

To  establish  a  rule  with  respect  to  parties  in  applications 
of  this  kind,  more  stringent  than  is  in  force  in  the  prosecu- 
tion of  actions  in  courts  of  law  in  requiring  the  cestui  que  trust 
to  be  brought  in  and  made  a  party,  would  cause  great  diffi- 
culty and  embarrassment  in  condemning  lands  for  public  uses. 
In  some  cases  such  a  rule  would  involve  the  necessity  of 
searching  through  the  labyrinths  of  the  complicated  trusts  of 
wills  and  settlements  to  ascertain  the  individuals  for  whose 
ultimate  benefit  the  uses  declared  were  created.  No  practical 
inconvenience  can  result  from  holding  that  the  trustee  of 
a  trust  not  executed  by  the  statute,  is  the  proper  party. 
Whatever  claim  for  compensation,  consistent  with  established 
rules  for  admeasuring  damages,  might  be  made  by  the  cestui 
que  trust,  if  a  party,  may  be  presented  by  the  trustee  whose 
duty  it  is  to  protect  the  estate  held  in  trust. 

On  the  argumeat  much  stress  was  placed  upon  the  fact 


FEBRUARY  TERM,  1873.  187 

State,  National  Eailway  Co.,  Pros.,  v.  Easton  &  Amboy  R.  R.  Co. 

that  the  prosecutors'  route  was  first  located.  These  proceed- 
ings will  be  unavailable  to  condemn  the  prosecutors'  franchises 
The  routes  of  the  two  roads  through  the  farm  are  not  identi- 
cal. They  cross  each  other  at  a  convenient  angle.  Neither 
company  has  constructed  a  track  over  the  premises.  By  the 
condemnation,  the  defendants  will  acquire  simply  a  right  of 
way  over  the  lands,  and  incidentally,  the  power  to  cross  the 
track  of  the  prosecutors.  It  would  be  competent  for  the  de- 
fendants to  acquire  both  thest  privileges  under  the  power  of 
condemnation  in  their  charter,  if  the  title  to  the  lands  were  in 
the  prosecutors  without  any  express  grant  to  that  effect.  Mor- 
ris and  Essex  R.  R.  Co.  v.  Central  R.  R.  Co.,  2  Vroom  206. 
If  the  prosecutors  have  equitable  rig-hts  growing  out  of  pri- 
ority of  location,  and  the  agreement  to  purchase  for  a  specific 
purpose  before  these  proceedings  were  commenced,  neither  the 
commissioners,  nor  the  Circuit  Court  on  appeal  is  the  proper 
forum  for  the  determination  and  adjudication  of  the  conflicting 
rights  of  the  two  companies  in  the  exercise  of  their  respective 
franchises.  The  inquiry  before  these  tribunals  will  be  the 
value  of  the  lands  and  the  damages.  It  could  be  nothing  more 
if  the  prosecutors  had  been  made  parties.  Whether  the  use 
proposed  to  be  made  by  the  prosecutors  of  the  land  at  the  in- 
tersection of  the  two  routes,  and  the  inconvenience  to  wh-ich 
they  may  be  subjected  by  the  crossing  of  their  railroad  when 
constructed,  are  matters  which  may  be  considered  in  awarding 
damages,  are  questions  that  must  be  raised  at  the  trial. 

The  proceedings  are  affirmed  with  costs. 

Cited  in  Stale,  M.  &  E.  B.  B.  Co.,  pros.,  v.  Hudson  Tunnel  Co.,  9  Vr.  548  ; 
New  Jersey  Southern  B.  B.  Co.  v.  Long  Branch  Comm'rs,  10  Vr.  28 ;  Mcln- 
iyre  v.  Easlon  and  Amboy  B.  B.  Co.,  11  C.  E.  Gr.  425 ;  Piatt  v.  Bright,  2 
Stew.  Eq.  128 ;  S.  C,  4  Stew.  Eq.  81 ;  S.  C,  5  Stew.  Eq.  362. 


188  NEW  JERSEY  SUPREME  COURT. 


State,  Baxter,  Pros.,  v.  Jlayor  and  Aldermen  of  Jersey  City. 


THE  STATE,   BAXTER,  PROSECUTOR,  v.  THE  MAYOR  ANI> 
ALDERMEN  OF  JERSEY  CITY. 

1.  The  act  of  1869,  which  extend*  the  provisions  of  the  second  section  of 
the  act  of  March  25th,  1864,  {Nix.  Dig.  86«)  to  deeds  and  declarations 
of  sale  under  public  or  municipal  authority,  establishes  a  rule  of  evi- 
dence giving  to  the  recitals  the  eflect  of  proof,  and  prescribing  the  kind 
of  evidence  which  shall  be  admitted  to  disprove  the  truth  thereof. 
The  only  evidence  competenl  for  that  purpose  is  the  adjudication  of 
the  court  to  that  efTect  on  certiorari  to  review  the  proceedings  on  which 
the  title  is  based. 

2.  Relief  on  certioran  being  substituted  for  the  defence  the  owner  might 
previously  havs  made  in  ejectment,  the  writ  may  be  sued  out  at  any 
time ;  but  when  prosecuted  for  such  purpose,  will  bring  up  for  review 
only  such  objections  as  would  previously  have  been  available  in  an 
action  of  ejectment. 

3.  The  sale  of  lands  for  taxes  or  assessments  is  the  execution  of  a  naked 
power,  and  every  requirement  of  the  statute  imposing  the  liability, 
and  prescribing  the  procedure  to  enforce  it,  which  is  for  the  security 
of  the  owner,  or  for  his  benefit,  must  be  strictly  conformed  to. 

4.  A  legal  assessment  is  the  foundation  of  the  authority  to  sell.  An 
assessment  which  is  illegal  will  not  be  aided  by  the  ratification  of  the 
Common  Council. 

5.  The  charter  of  Jersey  City  of  1851,  provided  that  the  entire  expense 
of  street  improvements  should  be  assessed  upon  and  paid  by  the  lands 
benefited  in  proportion  to  the  benefit  received.  An  assessment  which, 
by  the  report  of  the  commissioners,  is  shown  to  have  been  made  by 
assessing  each  lot  with  the  amount  of  earth  deposited  in  front  of  it  at 
the  price  paid  the  contractor  for  the  work,  is  not  warranted  by  the  law, 
and  will  not  support  a  title  made  under  a  sale  for  the  payment  of  the 
asses.?ment. 


On  certiorari  to  set  aside  the  proceedings  for  the  sale  of 
lands  for  the  non-payment  of  assessments  for  street  improve- 
ments. 

Argued  at  November  Term,  1872,  before  Justices  Wood- 
hull,  Depue  and  Van  Syckel. 

For  prosecutor,  /.  Flemming  and  E.  F.  Hodges^  of  Mass. 

For  defendants,  J.  Dixon. 


FEBRUARY  TERM,  187-3.  189 

State,  Baxter,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  The  lands  in  controversy  were  formerly  the 
property  of  one  S.  P.  Townshend.  While  he  was  owner,  an 
assessment  was  laid  upon  them  amounting  to  ^16,786.84,  for 
filling  in  Grand  street,  under  the  provisions  of  the  charter  of 
Jersey  City.  The  ordinance  directing  the  improvement  to  be 
made  was  passed  on  the  27th  of  September,  1853.  The  assess- 
ment for  the  costs  and  expenses  was  presented  to  the  common 
council  on  the  6th  of  November,  1855,  and  ratified  and  con- 
firmed on  the  5th  of  January,  1856. 

Townshend  sued  out  a  writ  of  certiorari  in  1 856,  to  remove 
the  proceedings  to  this  court.  At  the  term  of  November,  1857, 
the  assessment  was  set  aside  for  substantial  defects  therein,  and 
commissioners  were  appointed  by  the  court  to  make  another 
assessment.     State  v.  Jersey  City,  2  Dutcher  444. 

The  commissioners  appointed  by  this  court  made  a  report 
of  their  re-assessment  to  the  common  council,  which  waa 
confirmed. 

The  premises  were  set  up  at  public  sale  for  the  payment  of 
the  assessment,  and,  for  want  of  other  purchasers,  were  sold 
to  the  treasurer  of  the  city  for  the  term  of  ten  thousand  years  ; 
and  a  declaration  of  sale  was  made  thereon  accordingly. 

The  prosecutor  claims  title  under  a  mortgrge  made  by 
Townshend  on  the  1st  of  January,  1852,  prior  to  the  adoption 
of  the  ordinance  for  making  the  improvement;  under  which^ 
by  a  foreclosure  and  sale,  and  sundry  mesne  conveyances,  the 
title  of  the  mortgagee  became  vested  in  the  prosecutor. 

The  result  of  the  action  of  this  court,  on  the  certiorari 
which  was  prosecuted  by  Townshend,  was  to  affirm  all  the 
proceedings  except  the  making  of  the  assessment.  The 
prosecutor  insists  that  he  is  not  concluded  by  the  adjudica- 
tion in  Townshend's  case,  for  the  reason  that  the  title  under 
which  he  claims  had  passed  out  of  Townshend,  not  only 
before  the  commencement  of  his  suit,  but  also  before  the 
initiatory  steps  were  taken  by  the  common  council  for 
making  the  improvement.     Among  the  reasons  assigned  now 

Vol.  VII.  12 


190         NEW  JERSEY  SUPREME  COURT. 

State,  Baxter,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 

for  reversal  are  a  nutnber  which  were  held  to  be  untenable  in 
the  former  case.  It  will  not  be  necessary  to  determine  in  the 
present  case  the  effect  of  the  litigation  instituted  by  Town- 
shend  upon  the  rights  of  his  mortgagee,  as  defects  are  found 
in  the  proceedings  after  the  conclusion  of  that  suit,  which  will 
dispose  of  this  case. 

One  of  the  reasons  assigned  for  reversal  is,  that  the  re-as- 
sessment by  the  commissioners  appointed  by  this  court  is 
fatally  defective  in  that  it  appears  by  their  report  that  the 
commissioners  in  making  that  assessment,  proceeded  upon 
principles  not  warranted  by  law. 

It  is  conceded  by  the  counsel  of  the  city,  that  the  assess- 
ment was  made  in  violation  of  the  city  charter,  and  is  illegal. 
The  vexed  question  is,  whether,  at  this  late  day,  and  upon  tins 
writ,  the  prosecutor  is  entitled  to  relief. 

The  report  of  the  re-assessment  was  made  to  the  common 
council  on  the  10th  day  of  February,  1858,  and  confirmed  on 
the  23d  day  of  April,  1858.  The  sale  was  made  on  the  13th 
day  of  October,  1858.  The  writ  in  this  case  was  not  sued  out 
xintil  the  13th  day  of  November,  1869. 

The  city  has  not  conveyed  the  property  to  a  third  person, 
mor  has  any  effort  been  made  to  take  possession  under  the 
declaration  of  sale.  In  this  condition  of  affairs  the  prosecutor 
filed  a  bill  in  the  Circuit  Court  of  the  United  States  for  the 
district  of  New  Jersey,  to  remove  the  cloud  from  his  title. 
This  writ  of  certiorari  is  prosecuted  in  aid  of  that  suit. 

The  act  of  April  2d,  1869,  {Acts,  1869,  p.  1238,)*  which 
extends  the  provisions  of  the  second  section  of  the  act  of 
Marcli  25th,  1864,  {Nix.  Dig.  865,  §  61,)t  to  deeds,  declarations 
of  sale  and  conveyances  under  public  or  municipal  authority, 
establishes  a  rule  of  evidence  giving  to  recitals  in  convey- 
ances under  assessment  sales,  the  effect  of  proof  of  the  truth 
of  the  matters  therein  contained  in  actions  in  which  the 
validity  of  such  titles  is  in  controversy,  and  prescribing  the 
kind  of  evidence  which  shall  be  admitted  by  the  court  to 
disprove  the  truth  thereof.  The  only  evidence  competent  for 
that  purpose,  since  the  passage  of  the  act,  is  the  adjudication 

*Beo.,  p.  lOiS,  2  15,     t  Rev.,  p.  1015,  ?  14. 


FEBRUAEY  TERM,  1873.  191 

State,  Baxter,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 

of  the  court  to  that  eflFect  obtained  on  certiorari ;  that  is, 
proof  by  the  record  in  a  procedure  directly  for  the  review  of 
the  proceedings  on  which  the  title  is  based.  The  statute  does 
not  purport  to  make  valid  titles  which,  on  the  face  of  the 
deeds  or  declarations  of  sale,  appear  to  be  regular.  The  ques- 
tion whether  there  is  a  legal  foundation  for  the  title  is  left 
open,  notwithstanding  the  recitals,  but  the  litigation  of  that 
question  is  transferred  from  the  judge  at  the  circuit,  in  the 
trial  of  the  ejectment,  to  the  Supreme  (and  apparently  the 
Circuit)  Court,  in  a  different  form  of  action. 

The  fact  that  no  steps  have  been  taken  to  obtain  possession 
under  the  declaration  of  sale  would,  in  accordance  with  the 
.decision  of  this  court,  in  The  State,  Evans,  pros.,  v.  Jersey 
City,  6  Vrooni  381,  excuse  the  delay  in  suing  out  the  writ. 
In  the  opinion  in  that  case,  it  is  intimated,  that  notwithstand- 
ing the  language  of  the  act  of  1869,  the  writ  will  be  dismissed 
in  accordance  with  the  practice  of  the  court  in  other  cases,  if 
not  taken  out  within  a  reasonable  time.  In  view  of  the  clear 
language  of  the  act  as  to  time,  and  the  fact  that  relief  on  cer- 
tiorari is  substituted  for  the  defence  the  owner  might  previ- 
ously have  made  in  ejectment,  I  think  the  better  construction 
is,  that  with  respect  to  such  objections  as  were  tenable  in  the 
ejectment,  the  owner  is  entitled  to  the  writ  of  certiorari  at  any 
time,  leaving  the  effect  of  a  reversal  to  be  determined  in  the 
action,  if  it  shall  appear  possession  has  been  held  under  the 
conveyance  obtained  by  the  sale  for  the  period  of  time  in 
which  possession  held  adversely,  will  ripen  into  an  indefeasi- 
ble title. 

The  writ  when  prosecuted  under  such  circumstances  and  for 
such  purpose,  will  bring  up  for  review  only  such  defects  as 
would  previously  have  been  available  in  an  action  of  eject- 
ment. The  subject  of  inquiry  then  is,  whether  the  defect  in 
the  assessment  is  one  which,  prior  to  the  act  of  1869,  would 
have  been  fatal  in  the  ejectment. 

The  sale  of  lands  for  taxes  or  assessments,  is  the  execution 
of  a  naked  power.  Every  requirement  of  the  statute  im- 
posing the  liability  and  prescribing  the  procedure  to  enforce 


192  NEW  JERSEY  SUPREME  COURT. 

State,  Baxter,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 

it,  which  tends  to  the  security  of  the  owner,  or  is  for  his  bene- 
fit, must  be  strictly  conforraed  to.  No  intendment  will  be 
made  in  favor  of  the  legality  of  the  proceedings.  To  support 
the  title,  the  burden  of  showing  compliance  with  the  law,  is 
on  the  purchaser.  Thatcher  v.  Powell's  Lessee,  6  Wheat. 
119;  Ronkendorf  V.  Taylor,  4  Peters  349;  Sharp  v.  Speir,  4 
Hill  76;  Sharpe  v.  Johnson,  lb.  92;  Sherwood  v.  Beade,  7 
Hill  431 ;  Blachwell  on  Tax  Titles  34,  265. 

The  principle  is  general  in  its  application,  in  all  instances 
in  which  property  is  divested,  or  authority  exercised  on  it 
under  special  statutory  powers.  The  State  v.  Van  Geison,  3 
Green  340 ;  Perrine  v.  Farr,  2  Zab.  356 ;  Osborne  v.  Tunis, 
1  Butcher  634. 

In  The  City  of  Camden  v.  Mulford,  2  Butcher  49,  this 
court  held,  that  if  the  common  council  had  jurisdiction  to 
pass  ordinances  for  a  certain  purpose,  as  the  paving  of  streets,^ 
an  ordinance  of  that  kind  passed  without  a  petition  by  the 
specified  number  of  land  owners,  was  a  valid  ordinance  until 
set  aside  by  legal  proceedings  brought  for  that  purpose,  and 
its  validity  could  not  be  brought  in  question  as  a  matter  of 
defence  to  an  action  under  it.  This  decision  was  followed  in 
Martin  v.  Can-on,  2  Butcher  228,  but  the  latter  case  was 
subsequently  reversed  in  the  Court  of  Errors.  Carron  v. 
Martin,  2  Butcher  594.  Some  expressions  in  the  reversing 
opinion  seem  to  warrant  the  inference,  that  it  was  intended  to 
deny  the  distinctions  between  objections  that  were  remediable 
under  the  supervisory  powers  of  the  courts  over  municipal 
corporations,  and  defects  which  would  be  fatal  when  called 
in  question  collaterally.  The  principle  established  by  the 
case  is,  that  non-compliance  by  municipal  corporations  with 
the  requirements  of  the  charter  with  respect  to  the  mode  in 
which  property  shall  be  subjected  to  the  expenses  of  public 
improvements,  will  make  void  a  title  acquired  under  its  pro- 
ceedings. The  decision  in  Carron  v.  Martin  has  received  un 
qualified  approval  in  subsequent  cases.  Phillips  v.  City  of 
Hudson,  2  Vi-oom  143;  State,  Evans,  pros.,  v.  Jersey  City,  6 
Vroom  381,  and  cases  cited. 


FEBRUARY  TERM,  1873.  193 

State,  Baxter,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 

A  legal  assessment  is  the  foundation  of  the  authority  to  sell. 
JParker  v.  Overman,  18  How.  142. 

An  assessment  which  is  illegal  will  not  be  aided  by  a  rati- 
fication of  the  common  council.  To  make  a  valid  title,  there 
must  be  a  legal  assessment  duly  ratified.  Doughty  v.  Hope,  3 
Benio  595 ;  S.  C,  1  Comst.  79. 

At  the  time  the  duties  of  these  commissioners  were  per- 
formed and  their  report  was  made,  the  charter  of  1851  was 
in  force.  By  the  fifty-second  section,  as  amended  by  the  sup- 
plement of  1854,  a  board  of  four  commissioners  was  to  be  ap- 
pointed by  the  common  council  to  ascertain  the  expenses  of 
the  improvement,  and  to  make  the  assessments  for  the  same. 
It  was  made  the  duty  of  these  commissioners  to  ascertain  the 
costs  and  expenses  of  the  improvement,  to  examine  into  the 
whole  matter,  and  to  determine  and  make  report  in  writing  to 
tlie  common  council,  what  real  estate  ought  to  be  assessed,  and 
what  proportion  of  the  expenses  should  be  assessed  to  each  sepa- 
rate parcel  or  lot.  By  the  same  section,  the  entire  expenses 
of  the  improvement  were  required  to  be  assessed  upon  and 
paid  by  the  lands  and  real  estate  benefited,  in  proportion  to 
the  benefit  received.  The  object  of  prescribing  this  ratio  of 
appointment,  was  the  security  of  land  owners  from  illegal 
and  unconstitutional  exactions,  and  the  equalization  of  the 
burden  imposed.  No  assessment,  whether  by  the  board  of 
commissioners,  or  commissioners  appointed  in  any  other  way, 
could  lawfully  be  made,  unless  in  conformity  to  the  principle 
of  apportionment  prescribed.  The  State  v.  Jersey  City,  4  Zab. 
662;  The  State  v.  Newark,  1  Dutcher  400;  State  v.  Jersey 
aty,  2  16.  444  ;  4  lb.  500. 

The  commissioners  report  that  the  principle  on  which  the 
assessment  was  made,  was  by  assessing  to  each  lot  the  amount 
of  earth  deposited  in  front  of  it  to  the  centre  of  the  street, 
and  also  the  proportionate  share  of  the  amount  of  earth  de- 
posited on  the  intersections.  They  state  with  particularity, 
the  method  of  conducting  their  operations,  and  that  by 
■boring,  and  ascertaining  loss  by  shrinkage  and  blowing  off, 


194         NEW  JERSEY  SUPREME  COURT. 

State,  Baxter,  Pros.,  v.  Mayor  and  Aldermen  of  Jersey  City. 

from  information  of  persons  living  in  the  neighborhood,  with 
the  assistance  of  practical  surveyors,  they  were  relieved  from 
all  difficulties  and  doubts  in  ascertaining  the  quantity.  The 
sum  assessed  upon  each  of  the  lots  now  owned  by  the  prose- 
cutor, was  reached  by  charging  sixty-seven  cents  for  each 
cubic  yard  of  earth  deposited  in  front  of  the  lot,  adding  a  pro- 
portionate amount  for  intersections  at  the  same  rate,  that  being 
the  price  paid  the  contractor  for  the  work. 

The  course  pursued  by  the  commissioners  is  so  entire  a  de- 
parture from  the  explicit  command  of  the  charter,  as  that 
the  assessment  amounted  only  to  an  arbitrary  exaction,  in 
violation  of  the  express  provisions  of  the  charter,  and  can 
receive  no  support  from  the  only  legislative  power  the  city 
possessed,  to  compel  the  owners  of  lands  to  defray  the  cost  of 
the  improvement. 

The  defects  are  not  in  mere  matters  of  form,  in  the  pro- 
ceedings of  the  commissioners.  They  enter  into  the  very 
essence  of  the  duties  of  their  appointment.  An  assessment 
on  the  lands  benefited,  in  proportion  to  the  benefit  received^ 
is  a  jurisdictional  fact,  comprising  the  entire  scope  of  the 
authority  of  the  commissioners.  The  report  shows  that  they 
never  entered  upon  the  performance  of  the  duty  imposed  by 
the  charter,  and  that  the  office  they  assumed  was  to  obtain 
indemnity  to  the  city  for  expenses  incurred  in  the  improve- 
ment, in  a  manner  not  warranted  by  the  law.  The  result 
appears  in  the  fact,  that  property  comprising  forty-six  city  lots, 
was  transferred  to  the  city  for  the  term  of  ten  thousand  years ; 
no  purchaser  being  found  to  take  it  for  a  less  term,  and  pay 
the  assessment. 

Lapse  of  time  will  not  cure  the  defects  in  these  proceedings. 
The  cases  cited  by  the  defendant's  counsel  are  all  cases  in 
which  the  court,  before  the  act  of  1869,  dismissed  writs  of 
certiorari  as  improvideutly  allowed.  Haines  v.  Campion,  S 
Harr.  49  ;  The  State  v.  Ten  Eyck,  lb.  373 ;  The  State  v. 
Water  Commissioners,  1  Vroom  247. 

Tlie  Court  of  Errors  has  settled,  as  the  law  of  this  state^ 
that  in  case  of  ancient  deeds  from  mere  lapse  of  time,  a  pre- 


FEBRUARY  TERM,"  1873.  195 


Watson  V.  Acquackanonck  Water  Company. 

sumption  will  not  arise,  that  public  officers  have  performed  the 
requirements  of  the  statute  under  which  the  convey-ance  was 
made.  There  must  be  some  other  circumstance,  such  as  pos- 
session, to  warrant  the  presumption  of  compliance  with  the 
statute,  even  where  the  conveyance  is  a  deed  of  above  thirty 
years'  standing.      Osborne  v.  Tunis,  1  Dulcher  634. 

The  assessment  and  all  proceedings  thereunder  are  set  aside. 

The  court  will  entertain  an  application  for  the  appointment 
of  new  commissioners,  if  the  defendants  are  advised  that  such 
appointment  may  be  now  made. 

Cited  in  State,  Graham,  pros.,  v.  Paterson,  8  Vr.  380 ;  State,  Speer,  pros., 
V.  Passaic,  9  Vr.  168 ;  State,  Spear,  pros.,  v.  Perth  Amhoy,  9  Vr.  425 ;  State, 
Wirumts,  pros.,  v.  Jersey  City,  13  Vr.  349  ;  Woodbridge  v.  State,  14  Vr.  262 ; 
Lehigh  Valley  B.  B.  Co.  v.  Newark,  15  Vr.  323. 


JOHN  WATSON  v.  THE  ACQUACKANONCK  WATER  COM 
PANY. 

1.  Corporations  being  the  creatures  of  legislation,  are  precisely  what 
their  organic  act  makes  them.  For  every  function  they  claim  to 
exercise,  they  must  find  authority  in  legislative  grant. 

2.  The  defendant  has  no  power  under  its  charter  to  condemn  the  right 
which  the  plaintiff  has  to  the  flow  of  Weasel  brook  over  his  close, 
without  including  and  taking  the  bed  of  the  stream. 


On  certiorari. 

Argued  at  November  Term,  ]  872,  before  Justices  WooD- 
HTJLL,  Depue  and  Van  Syckel. 

For  plaintiff,  /.  Hopper  and  /.  Wilson. 

For  defendant,  T.  D.  Hoxie  and  8.  Tuttle. 

The  opinion  of  the  court  was  delivered  by 
Van   Syckel,   J.     John  Watson,    the    plaintiff,  is    the 
owner  of  a  parcel    of   land   lying    on  both  sides  of  Weasel 


196  NEW  JERSEY  SUPREME  COURT. 

Wataon  v.  Acquackanonck  Water  Company. 

brook,  in  the  county  of  Passaic,  below  the  reservoir  of  the 
Acquackanonck  Water  Company,  the  water  of  said  brook 
being  used  by  him  for  the  purposes  of  a  bleachery  erected  on 
his  premises.  The  water  company  proposes  to  erect  woi*lis 
upon  its  own  premises,  by  whicii,  without  taking  the  bed  of 
the  stream,  or  any  part  of  the  plaintiff's  lands,  it  will  divert 
from  the  plaintiff  the  waters  of  Weasel  brook,  and  take  and 
use  the  same  in  its  reservoir,  and  commingle  with  and  flow 
into  Weasel  brook  the  less  pure  water  of  the  Dundee  canal. 
In  pursuit  of  this  object  the  defendant  has  procured  an  order 
to  be  made  by  one  of  the  judges  of  the  Court  of  Common 
Pleas  of  said  county,  appointing  commissioners  to  assess  the 
damages  which  John  Watson  will  sustain  by"  the  contem- 
plated work. 

The  legality  of  this  order  is  the  subject  of  contest  in  this 
case. 

The  question  is  whether  the  defendant,  under  its  charter, 
can  condemn  the  right  which  the  plaintiff  has  to  the  flow 
over  his  close  of  the  uncorrupted  waters  of  Weasel  brook, 
without  including  and  taking  the  bed  of  the  stream? 

It  is  a  familiar  principle  that  corporations  being  the 
creatures  of  legislation,  are  precisely  what  their  organic  act 
makes  them,  and  beyond  that,  nothing.  They  must  act 
strictly  within  their  limited  sphere,  and  for  every  function 
they  claim  to  exercise,  they  must  find  authority  in  legislative 
grant.     2  Cr.  127. 

The  power,  therefore,  which  the  defendant  is  now  seeking 
to  use,  must,  if  it  has  any  existence,  be  found  in  its  charter. 

The  fifth  section  of  the  charter,  {Ads,  1867,  ;;.  897,) 
provides  that  its  officers  and  employees  may  at  all  times 
^nter  upon  all  lands  or  waters  in  said  county,  and  survey, 
search,  excavate,  and  bore  for  water,  and  examine  the  quality 
thereof,  and  locate  all  and  singular  the  reservoirs,  drains, 
ditches,  aqueducts,  pipes,  fountains,  water-wheels,  force- 
pumps,  and  buildings,  and  all  other  necessary  work  and  ap- 
pendages thereto,  and  when  said  location  shall  have  been 
determined  on,  cause  a  map  to  be  made  of  all  lands  which  it 


FEBRUARY  TERM,  1873.  197 

Watson  V.  Acquackanonck  Water  Company. 

may  require  for  the  purposes  aforesaid.  The  sixth  section 
then  provides  that  if  the  company  cannot  agree  with  the 
owner  of  such  required  lands  for  the  purchase  thereof,  appli- 
cation may  be  made  for  the  appointment  of  commissioners, 
who  shall  view  and  examine  the  said  lands,  and  make  a  just 
an  equitable  estimate  of  the  value  of  the  same,  and  assess  the 
damages  which  will  accrue  from  erecting  said  works,  and  re- 
port, in  writing,  the  amount  to  be  paid  to  each  owner,  stating 
the  metes  and  bounds  of  the  lands  assessed,  which  report, 
when  filed,  shall  be  evidence  of  the  right  of  said  company  to 
hold,  occupy,  and  possess  the  land  so  described.  The  power 
is  expressly  given  in  these  sections  to  condemn  lands,  and  to 
assess  the  consequential  damages  resulting  from  taking  lands; 
not  to  assess  damages  where  no  lands  are  taken. 

But  it  is  insisted  that  from  the  right  given  in  the  latter 
part  of  the  fifth  section,  "to  do  all  other  things  which  shall 
be  suitable  or  necessary  for  completing  the  works  thereby  con- 
templated," there  is  an  implied  grant  of  power  to  do  whatever 
is  necessary  to  acquire  what  is  suitable  for  their  use.  It  is 
obvious  from  the  connection  in  which  these  words  are  used, 
that  they  were  not  intended  to  carry  a  power  of  condemna- 
tion, but  to  enable  the  company  to  do  any  other  act  of  a  like 
nature  with  those  enumerated. 

In  the  third  section  of  the  charter,  power  is  given  the  com- 
pany to  obtain  and  secure  by  purchase,  the  right  to  use, 
divert,  and  appropriate  any  springs,  streams,  or  ponds  of 
water.  The  omission  to  give  express  power  to  condemn  what 
by  the  third  section  may  be  acquired  by  purchase,  furnishes  a 
strong  implication  that  the  right  to  condemn  was  not  intended 
to  be  co-extensive  with  the  power  to  purchase. 

That  this  is  the  true  interpretation  of  the  act,  is  evinced  by 
the  fact  that  it  prescribes  the  mode  of  appointing  commis- 
sioners for  the  single  purpose  of  condemning  lands,  bat 
makes  no  provision  for  such  appointment  to  condemn  the  use 
■of  water,  nor  does  it  direct  how  such  commissioners,  if  ap- 
jjointed,  shall  proceed  to  execute  their  duties. 


198  NEW  JERSEY  SUPREME  COURT. 

State,  Bodine  et  al.,  Pros.,  v.  Common  Council  of  Trenton. 

The  company  may  acquire  by  purchase  the  right  to  divert 
these  waters  from  the  plaintiff,  but  cannot  take  it  by  con- 
demnation. In  my  opinion  there  is  no  authority  to  make  the 
order  certified  into  this  court,  and  it  should  therefore  be  set 
aside  with  costs. 


THE  STATE,  DANIEL  B.  BODINE  ET  AL.,  PROS.,  v.  THE  COM- 
MON COUNCIL  OF  THE  CITY  OF  TEENTON. 

1.  The  return  of  surveyors  of  the  highways  laying  out  a  public  road, 
dated  November  18th,  1833,  marked  filed  in  office  of  county  clerk, 
December  7th,  1833,  and  recorded  in  Vol.  2  of  the  record  of  roads 
The  date  of  filing  is  not  conclusive  evidence  of  the  date  of  transmis- 
sion, and  it  will  be  presumed  after  the  lapse  of  so  many  years,  from 
the  fact  that  the  return  actually  was  recorded,  that  the  Court  of  Com- 
mon Pleas  had  adjudicated  that  it  was  filed  in  season,  and  that  ques- 
tion cannot  be  raised  in  this  collateral  proceeding. 

2.  The  78th  section  of  the  road  act  {Nixon  836)  does  not  apply  to  the 
city  of  Trenton. 

3.  An  encroachment  on  a  street  cannot  be  legalized  by  mere  lapse  of 
time, 

4.  The  common  council  cannot  delegate  to  the  street  commissioner  the 
power  of  ascertaining  the  boundaries  of  streets,  where  they  are  in 
doubt.  This  is  in  the  nature  of  a  judicial  function,  and  must  be  exer- 
cised by  the  council  by  ordinance,  with  special  reference  to  the  street 
to  be  opened,  and  a  mode  provided  in  which  parties  to  be  affected  may 
be  heard. 


On  certiorari  to  remove  a  resolution  of  the  common  council 
of  the  city  of  Trenton. 

Argued  at  November  Term,  1872,  before  Justices  WoOD- 
HULL,  Depue  and  Van  Syckel. 

For  plaintiffs,  Alfred  Reed  and  James  Wilson, 

Contra,  /.  S.  Aitkin  and  A.  G.  Eichey. 


FEBRUARY  TERM,  1873.  19& 

State,  Bodine  et  al.,  Pros.,  v.  Common  Council  of  Trenton. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  The  common  council  of  the  city  of 
Trenton,  on  the  14th  of  November,  1871,  resolved  "that  the 
street  commissioner  be  directed  to  have  the  obstructions  on 
West  Canal  street,  between  Perry  street  and  the  junction  of 
the  feeder  and  canal  of  the  Delaware  and  Raritan  Canal 
Company,  removed  ;  and  that  before  proceeding  to  do  so,  he 
give  the  property  owners  on  said  street  two  weeks'  notice  to 
remove  such  obstructions."  In  pursuance  of  this  resolution 
the  street  commissioner  gave  to  the  prosecutors  notice  in 
writing  to  remove  within  twenty  days,  from  said  street,  all 
the  buildings,  sheds,  fences,  and  other  obstructions  adjoining 
their  property. 

This  certiorari  is  prosecuted  to  test  the  legality  of  these 
proceedings. 

West  Canal  street,  beginning  at  the  junction  of  the  feeder 
with  the  Delaware  and  Raritan  canal,  running  along  the 
westerly  bank  of  the  canal,  across  Perry,  Academy,  Com- 
merce, Merchant,  and  State  streets,  to  the  Assanpink  creek, 
was  laid  out  as  a  public  highway,  by  six  surveyors  of  the 
highways,  by  their  return  dated  November  18th,  1833, 
marked  "filed  in  office  of  county  clerk,  December  7th, 
1833,"  and  recorded  in  volume  2  of  the  record  of  roads. 
No  part  of  this  street  has  ever  been  opened  and  used  except 
that  portion  between  State  and  Merchant  streets,  and  more 
recently  it  has  been  used  for  part  of  its  width  from  Perry  to 
Merchant  street. 

The  relators  rest  their  case  upon  four  principal  reasons, 
which  will  be  considered  in  the  order  in  which  they  are  stated. 

1.  That  the  return  of  the  surveyors  is  void  under  the 
sixth  section  of  the  road  act,  because  it  was  not  filed  within 
fifteen  days  after  the  date  thereof. 

2.  That  by  the  operation  of  the  78th  section  of  the  road 
act,  {Nix.  Dig.  836)*  the  said  street  has  become  vacated  by 
non-user  thereof  for  more  than  twenty  years  by  the  public. 

3.  That  the  prosecutors  have  acquired  title  by  adverse  pos- 

*Rev.,p.  1010,  §  78. 


200  NEW  JERSEY  SUPREME  COURT. 

State,  Bodine  et  al.,  Pros.,  v.  (Jommon  Council  of  Trenton. 

session  for  more  than  twenty  years  to  that  part  of  the  land 
along  their  line,  which  is  claimed  to  be  within  the  limits  »f 
the  street. 

4.  That  the  defendants  cannot,  by  the  summary  proceedings 
tliey  have  taken,  determine  the  boundaries  of  a  street,  re- 
move permanent  obstructions  and  open  the  same. 

The  fifth  section  of  the  act  concerning  roads  directs  that 
the  surveyors  shall  date,  sign,  and  deliver  the  return  to  one 
of  the  applicants,  who  shall  deliver  or  transmit  it  to  the 
clerk,  and  the  sixth  section  declares  that  in  case  of  neglect  or 
refusal  of  the  applicant  to  deliver  or  transmit  it  to  the  clerk 
within  fifteen  days  after  its  date,  it  shall  be  void. 

The  mere  circumstance  that  it  was  marked  filed  on  the  7th 
of  December,  is  not  conclusive  evidence  of  the  date  of  its 
transmission.  The  Court  of  Common  Pleas  to  which  the  re- 
turn was  made  had  the  right  to  determine  the  question  of 
f\ict  whether  it  was  transmitted  within  due  time  so  as  to  en- 
title it  to  be  recorded,  and  it  will  be  presumed  after  the  lapse 
of  so  many  years,  from  the  fact  that  it  actually  was  recorded, 
that  that  question  was  duly  passed  upon  and  adjudicated,  so 
that  it  cannot  be  re-opened  and  litigated  in  this  collateral 
way. 

When  by  statute  power  over  an  entire  subject  matter  is 
conferred  upon  a  court  of  general  jurisdiction,  every  intend- 
ment will  be  made  in  favor  of  the  correctness  of  the  pro- 
ceedings, and  they  cannot  be  attacked  collaterally  where 
jurisdiction  over  the  subject  matter  appears.  Den  v.  Harti- 
mell,  3  Harr.  73 ;  State  v.  Lewis,  2  Zab.  564 ;  Hess  v.  Cole, 
S  lb.  116  ;  Stokes  v.  Middleton,  4  Butcher  32. 

The  city  authorities  have  exercised  unchallenged  control 
-over  at  least  portions  of  this  highway  for  many  years,  and 
by  sundry  ordinances,  the  first  in  1849,  and  the  last  in  1851, 
vacated  parts  of  it  at  the  instance  of  land  owners  on  its  route 
who  thus  recognized  its  actual  existence. 

That  it  was  not  opened  and  appropriated  to  the  public  uses 
to  its  full  width  through  its  entire  line,  cannot  affect  the 
result,  as  it  was  within  the  discretion  of  the  corporate  body 


FEBRUARY  TERM,  1873.  201 

State,  Eodine  et  al.,  Pros.,  v.  Common  Council  of  Trenton. 

to  determine  when  they  would  use  the  extreme  limit  of  tlieir 
authority  as  against  the  adjacent  laud  owners. 

The  act  of  March  24th,  1859,  {Nix.  Dig.  836,  p/.  78,)*  pro- 
vides "  that  all  public  roads,  having  been  laid  out  by  sur- 
veyors or  otherwise,  and  not  opened,  worked,  or  used  for  more 
than  twenty  years,  shall  be  considered,  and  they  are  hereby 
vacated." 

By  the  supplement  to  the  charter  of  the  city  of  Trenton^ 
passed  February  19th,  1847,  it  is  provided  that  the  power  ta 
lay  out,  vacate,  widen,  or  alter  public  streets  within  said  city 
be  vested  exclusively  in  the  common  council,  but  that  the 
laying  out  of  any  road  in  said  city  theretofore  by  surveyors 
of  the  highways,  shall  be  deemed  valid  so  far  as  regards  the 
power  of  the  surveyors  to  lay  the  same. 

The  city  charter  having  conferred  upon  the  corporation 
power  to  regulate  and  lay  out  streets,  the  general  road  law 
will  not  apply  to  this  case.  Q'oss  v.  Morristown,  3  C.  E. 
Gh'een  305 ;  Taintor  v.  Iforristown,  4  Vroom  57.  General 
legislation  will  not  change  or  repeal  by  implication  the  powers 
conferred  on  particular  municipalities,  such  repeal  must  be  by 
express  words.     The  State  v.  Clarke,  1  DutoJier  54. 

These  objections,  therefore,  which  deny  the  existence  of 
West  Canal  street  as  a  lawful  highway,  cannot  be  sustained,^ 
nor  does  the  claim  of  the  relators  that  they  have  lawfully 
appropriated  to  their  own  use  a  portion  of  this  street  by 
holding  it  within  their  enclosure  for  over  thirty  years,  rest 
upon  any  better  foundation. 

An  encroachment  upon  a  street  cannot  be  legalized  by  mere 
lapse  of  time.  Ci^oss  v.  Morristown,  3  C.  E.  Green  305  ; 
Taintor  v.  Morristown,  4  Vroom  57 ;  Same  v.  Same,  4  C.  E. 
Green  46. 

The  remaining  reason  relates  to  the  regularity  of  the  pro- 
ceedings taken  by  the  defendants  to  open  an  existing  highway 
over  which  their  charter  gives  them  exclusive  control. 

By  the  amended  charter  of  the  city,  passed  March  15th, 
1866,  {Laws,  1866,  p.  373,)  the  common  council  have  power 

*22e».,  p.  1010,  2  78. 


■202  NEW  JERSEY  SUPREME  COURT. 

State,  Bodine  et  al.,  Pros.,  v.  Coiumon  Council  of  TrentDn 

to  make  ordinances,  rules,  regulations,  and  by-laws  to  ascer- 
tain and  establish  the  boundaries  of  all  streets,  avenues,  high- 
ways, lanes,  and  alleys  in  said  city,  and  prevent  and  remove 
all  encroachments  upon  said  streets,  avenues,  highways,  lanes, 
and  alleys. 

The  only  ordinance  passed  by  the  common  council  is  that 
of  May  8th,  1866,  entitled  "an  ordinance  in  relation  to  the 
street  commissioner,"  the  seventh  section  of  which  provides 
that  the  street  commissioner  shall  have  full  power  and  au- 
thority to  cause  all  streets  to  be  opened  to  their  proper  width, 
and  to  cause  encroachments  to  be  removed  if  the  owner  fails 
to  remove  them  after  four  weeks'  notice. 

Where  the  fact  of  encroachment  is  clear,  and  the  determi- 
nation of  the  extent  to  which  it  exists  does  not  involve  the 
consideration  of  any  uncertain  question,  it  may  be  removed 
by  the  street  commissioner  by  the  direction  of  the  council 
under  this  ordinance.  But  the  determination  of  the  bounda- 
ries of  a  street  requii'es  action  of  a  judicial  nature  to  ascertain 
the  precise  ciiaracter  and  extent  of  the  encroachment,  and 
parties  to  he  affected  by  the  adjudication  have  a  right  to  be 
■beard.  When  a  street  has  never  been  opened  and  its  exact 
location,  as  in  this  case,  is  in  doubt,  special  action  must  be 
taken  by  the  common  council  under  the  authority  to  establish 
the  boundaries  of  streets.  This  judicial  power  is  lodged  by 
the  city  charter  in  their  legislative  body  and  cannot  be  by  them 
delegated  to  the  street  commissioner.  The  resolution  certified 
here  not  only  directs  the  street  commissioner  to  remove  ob- 
structions, but  imposes  upon  him  the  duty  of  adjudicating 
where  the  true  lines  of  the  public  way  are.  If  he  is  permitted 
to  exercise  a  function  so  important,  the  house  of  any  citizen  is 
liable  to  be  wrongfully  pulled  down  by  error  in  the  judgment 
of  a  tribunal  before  which  he  cannot  be  heard,  and  to  which 
the  legislature  has  not  entrusted  the  determination  of  such 
weighty  matters. 

This  judicial  function  must  be  assumed  and  exercised  by 
the  common  council  by  ordinance,  with  special  reference  to 
the  particular  street  to  be  opened,  and  a  mode  must  be  pro- 


FEBRUAEY  TERM,  1873.  203 


Fisher  v.  Allen  et  al. 


vided  in  which  the  parties  to  be  affected  may  be  heard.  When 
the  lines  of  the  street  are  thus  duly  ascertained  and  establislied 
the  street  commissioner  can  execute  the  specific  order  which 
may  be  made  for  his  guidance. 

This  view  is  in  accordance  with  the  rule  which  was  adopted 
hy  Justice  Bedle  in  The  State  v.  Jersey  City,  5  Vroom  32. 

I  am  therefore  of  the  opinion  that  the  resolution  in  ques- 
tion is  without  authority  and  should  be  set  aside. 


Cited  in  Price  v.  Inhabitants  of  Plainfield,  11  Vr. 


FISHEE  V.  ALLEN  ET  AL. 


Where  in  a  suit  on  a  promissory  note  against  three  defendants  as  joint 
and  several  makers,  one  of  the  defendants  dies  pending  suit,  the  action 
survives  against  the  other  defendants,  and  cannot  be  continued  against 
the  survivors  and  the  representatives  of  the  deceased. 
The  third  section  of  the  act  respecting  abatement,  {Nix.  Dig.  2,  |  3,) 
applies  to  the  case  of  a  sole  defendant. 


On  motion  to  set  aside  rule,  &c. 

Submitted  on  written  briefs  at  November  Term,  1872. 

For  the  motion,  George  A.  Allen. 

Contra,  J.  N.  Voorhees. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  This  is  a  suit  on  a  promissory  note 
against  the  defendants  as  joint  and  several  makers.  The 
defendant,  Allen,  died  pending  the  suit,  whereupon  the  plain- 
tiff entered  a  nolle  prosequi  as  to  the  surviving  defendants,  and 
obtaineil  a  rule  of  this  court  to  proceed  against  the  administra- 
tors of  the  decedent.  The  administrators  now  move  to  set 
aside  this  rule. 


204         NEW  JERSEY  SUPREME  COURT. 


State,  Charlier,  Pros.,  v.  Woodruff. 


By  our  statute,  {Nix.  Dig.  1,  §  2,)*  on  the  death  of  Allen^^ 
this  action  survived  as  against  the  other  defendants.  The  suit 
could  not  be  continued  again.st  the  survivors,  and  the  repre- 
sentatives of  the  deceased,  becaase  the  one  is  to  be  charged,  de 
bonis  propriis,  the  other  de  bonis  intestaioris. 

The  third  section  of  the  act  respecting  abatement,  applies  to 
the  case  of  a  sole  defendant. 

By  the  entry  of  the  nolle  as  to  the  two  surviving  defendants, 
the  suit  was  discontinued. 

The  rule  should  be  vacated. 


THE  STATE,  CHAKLOTTE  CHARLIEE,  PROS.,  v.  NOAH  WOOD- 
EUFF  ET  AL. 

1.  A  public  road  described  in  the  return  as  "beginning  near  the  New 
Jersey  Central  Railway  depot,  at  Roselle,  on  the  northerly  side  of 
said  depot,  and  in  a  line  of  a  road  known  as  Chestnut  street,"  does  not 
define  the  beginning  with  the  requisite  certainty. 

2.  Where  three  terms  of  the  court  have  intervened  between  the  return  of 
a  public  road  and  an  application  for  a  certiorari,  and  the  road  in  the 
meantime  has  been  opened  and  worked,  an  allocatur  will  not  be 
granted,  and  if  one  has  been  ordered,  it  will  be  dismissed  when  the 
facts  are  brought  to  the  knowledge  of  the  court. 


On  certioraH  to  set  aside  the  return  of  a  public  road. 

Argued  at  November  Term,  1872,  before  Justices  Depue, 
Van  Syckel  and  Woodhull. 

For  relator,  W.  J.  Magie. 

For  defendants,  J.  R.  English, 
*i2et>.,p.  1,  2  2. 


FEBRUARY  TERM,  1873.  205 


State,  Charlier,  Pros.,  v.  Woodruff. 


The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  This  writ  is  prosecuted  to  S3t  aside  the 
return  of  a  public  road  in  the  township  of  Union,  in  the 
county  of  Union. 

The  reasons  relied  upon  are — 

1.  That  the  beginning  of  the  road  is  not  described  with  suf- 
ficient certainty. 

2.  That  the  damages  are  not  properly  assessed. 

The  road  is  described  as  "beginning  near  the  New  Jersey 
Central  Railroad  depot,  at  Roselle,  on  the  northerly  side  of 
said  depot,  and  in  a  line  of  a  road  known  as  Chestnut  street.'* 

This  does  not  define  the  beginning  with  requisite  certainty. 
Griscom  v.  Gilmore,  1  Harr.  105  ;  State  v.  Green,  3  Harr.  179. 

In  Biddle  v.  Dancer,  Spencer  634,  and  in  State  v.  Van 
Bushirh,  1  Zab.  87,  there  was  a  stake  set  up  to  designate  the 
beginning  point. 

The  damages  are  assessed  in  one  case  to  the  "  heirs  of  Jacob 
Kemp,"  and  in  another  case  to  "  Peter  Donald  &  Co." 

This  assessment  is  defective,  and  this  error  may  be  set  up 
by  the  relator,  even  though  the  parties  to  whom  the  assessment 
is  improperly  made  do  not  complain.  State  v.  Oliver,  4  Zah. 
129;  State  v.  Fischtr,  2  Dutcher  129;  State  v.  Blauvelt,  4 
Vroom  36. 

These  objections  however  cannot  avail  the  prosecutrix,  be- 
cause she  allowed  the  road  to  be  opened  (except  over  her  own 
land)  and  sixteen  months  to  intervene  after  it  was  laid  out, 
before  she  applied  for  the  allowance  of  this  certiorari. 

Where  three  terms  of  this  court  have  intervened  between 
the  return  and  an  application  for  a  certiorari,  and  the  road  in 
the  meantime  has  been  opened  and  worked,  an  allocatur  will 
not  be  granted,  and  if  one  has  been  ordered,  it  will  be  dis- 
missed when  the  facts  are  brought  to  the  knowledge  of  the 
court.     State  v.  Ten  Eych,  3  Harr.  373. 

This  writ  should  be  dismissed  with  costs. 

Cited  in  Washington  v.  Fisher,  14  Vr.  377 ;  Bowne.  v.  Logan,  14  Vr.  421  ; 
Kearsley  v.  Gibbs,  15  Vr.  169 ;  Rinehart  v.  Cowell,  15  Vr.  360. 

Vol.  VII.  13 


CASES   DETERMINED 

IN  THE 

SUPREME  COURT  OF  JUDICATURE 

OP  THE 

> 

STATE  OF   NEW  JERSEY, 

AT  JUNE  TERM,  1873. 


THE  PKOPKIETOKS  OF  THE  MORRIS  AQUEDUCT  ads.  SAM- 
UEL  JONES. 

1.  "When  the  words  of  a  statute,  directing  the  mode  or  time  of  doing  an 
act,  are  clear,  the  provision  cannot  be  deemed  merely  directory,  unless 
the  literal  interpretation  will  lead  to  a  result  so  absurd  or  highly  in- 
convenient as  to  demonstrate  that  such  could  not  have  been  the  legisla- 
tive intent. 

2.  A  statute  giving  an  appeal  from  the  award  of  commissioners  to  tiie 
first  or  second  term  of  the  Circuit  Court  after  such  award,  required  a 
notice  of  such  appeal  to  be  given  "  two  weeks  prior  to  such  term  " — 
hdd,  that  this  provision  must  be  strictly  complied  with. 

3.  Hdd  further,  that  such  notice  was  not  regulated  by  the  supplement  to 
practice  act,  passed  14th  March,  1873. 


The  defendant  was  incorporated  in  1799  for  the  purpose  of 
supplying  the  inhabitants  of  Morristown  with  water.  By  a 
supplement  passed  on  the  17th  of  February,  1862,  power  was 
conferred  to  extend  its  works,  and  provision  was  therein 
made,  in  case  the  requisite  lands  and  materials  could  not  be 
obtained  by  agreement,  to  have  the  damages  assessed  by  com- 

206 


JUNE  TERM,  1873.  207 

Proprietors  of  Morris  Aqueduct  ads.  Jones. 

raissioners  in  the  usual  form.  Section  fifth  contains  the 
•clause  following,  viz. :  "  That  if  either  party  feel  aggrieved  by 
said  assessment  and  award,  such  party  may  appeal  to  the 
next  or  second  term  of  the  Court  of  Common  Pleas  of  said 
•county  by  petition,  and  notice  thereof  served  upon  the  oppo- 
site party  two  weeks  prior  to  such  term,  or  published  a  like 
•space  in  a  newspaper  published  at  Morristown,  which  petition 
and  notice  so  served  and  published  shall  vest  in  said  court 
full  power  to  hear  and  determine  said  appeal,  &c."  By  the 
further  supplement  passed  April  3d,  1872,  the  appeal  just 
oaentioned  is  directed  to  be  made  to  the  Circuit  Court  of  the 
■county  instead  of  to  the  Court  of  Common  Pleas. 

In  the  present  case  an  assessment  was   made  in   August, 

1872,  and  Mr.  Jones,  the  petitioner,  appealed  therefrom  to 
the  Circuit  Court  of  the  county  of  Morris,  at  the  second  term 
thereafter,  which  began  on  the  21st  day  of  January,  1872. 
On  that  day  a  motion  being  made  in  court  to  entertain  said 
appeal  and  award  a  venire  for  a  jury,  such  motion  was 
opposed  by  the  counsel  of  the  proprietors  of  the  Morris  aque- 
duct, on  the  ground  that  the  notice  of  appeal  required  by  the 
supplement,  already  referred  to,  had  not  been  given.  It  ap- 
pearing that  the  notice  in  question  had  been  served  on  the 
13th  of  January,  1873,  the  court  made  no  adjudication,  and 
on  the  28tli  of  the  same  month,  the  motion  was  renewed. 
On  that  occasion  it  was  shown  that  on  the  21st  of  January, 

1873,  a  second  notice  had  been  given,  signifying  that  this 
TOotion  of  the  28th  would  be  made. 

The  question  thus  presented  being  deemed  by  the  court  one 
of  difficulty,  was  certified  for  the  advisory  opinion  of  this 
court. 

Argued  at  February  Term,  1873,  before  Beasley,  Chief 
Justice,  and  Justices  Depue  and  Van  Syckel. 

For  the  motion,  /.  Vanatta. 
Contra,  H.  C.  Pitney. 


208  NEW  JERSEY  SUPREME  COURT. 

Proprietors  of  Morris  Aqueduct  ads.  Jones. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  Whether  the  notice  of  appeal 
from  the  award  of  the  commissioners  appointed  to  assess  the 
value  of  the  land  of  the  petitioner  and  his  damages,  is  suffi- 
cient, is  the  point  in  dispute.  The  statute  in  question 
declares  that  the  party  aggrieved  by  such  award  may  appeal 
to  the  "next  or  second  term  of  the  court,"  and  that  notice 
thereof  shall  be  served  "  upon  the  opposite  party  two  weeks 
prior  to  such  term."  The  appeal  in  this  case  was  made  to 
the  first  day  of  the  second  term,  a  notice  thereof  of  one  week 
having  been  given  ;  but  such  course  being  perceived  to  be 
erroneous,  the  matter  was  laid  over  for  a  week,  another  notice 
being  given  conformably  to  this  adjournment.  The  case 
therefore,  is  presented  of  an  appeal  to  a  special  day  in  term, 
and  a  notice  thereof  running  back  two  weeks  prior  to  that 
time.  But  I  think  it  is  very  clear  that  this  is  not  a  compli- 
ance with  the  statute  authorizing  this  proceeding.  This  act 
directs  that  the  appeal  shall  be  to  the  first  or  second  term  of 
the  court  occurring  after  the  award,  and  under  the  foi'ce  of 
this  provision,  no  reason  appears  why  the  petition  might  not 
be  presented  on  any  day  during  such  terra.  But  the  notice 
of  such  appeal,  with  respect  to  time,  is  fixed  with  entire  cer- 
tainty and  precision.  The  statutory  provision  is,  that  it 
must  be  served  on  the  opposite  party  "  two  weeks  prior  to 
such  term,"  that  is,  the  term  to  which  the  appeal  is  addressed. 

It  is  impossible  to  draw  in  question  the  meaning  of  this  lan- 
guage. The  notice  in  the  case  before  the  court  was  two  weeks 
prior  to  the  date  of  the  application,  but  as  it  was  not  two 
weeks  prior  to  the  term  at  which  such  application  was  made, 
it  is  indisputably  clear  that  the  statute  in  this  particular  lias 
not  been  complied  with. 

Upon  the  argument  before  the  court,  an  effort  was  made, 
on  two  grounds,  to  avoid  the  effect  of  this  clear  statutory 
expression.  The  first  position  taken  was,  that  the  legislative 
direction,  with  respect  to  the  time  for  whicli  notice  of  the 
appeal  is  to  be  given,  is  not  mandatory,  but  merely  direc- 
tory. There  have  been  a  number  of  decisions  which  have, 
under  special  circumstances,  held  that  neither  the  exact  time 


JUNE  TERM,  1873.  209 

Proprietors  of  Morris  Aqueduct  ads.  Jones. 

■nor  the  exact  mode  prescribed  by  statutes  for  the  doing  of 
acts  directed  to  be  done,  is  necessarily  essential  to  the  validity 
of  the  transaction.  Upon  looking  into  the  cases  referred  to, 
and  on  an  examination  of  others  standing  in  the  same  line,  I 
find  they  all  rest  upon  the  common  principle  that  the  legisla- 
tive will  is  to  be  ascertained  not  from  the  meaning  of  the  text 
of  the  statute  alone,  but  from  such  words  interpreted  in  view 
of  the  general  object  of  the  particular  act.  The  adjudications 
are  the  results,  not  of  acts  of  interpretation,  which  is  the  mere 
finding  of  the  true  sense  of  the  special  form  of  words  upcd, 
but  of  acts  of  construction,  which  Dr.  Lieber,  in  his  Her- 
meneutics,  has  [)roperly  defined  as  "  the  drawing  of  conclusions 
respecting  subjects  that  lie  beyond  the  direct  expression  of  the 
text — conclusions  which  are  in  the  spirit,  though  not  within 
the  letter  of  the  text."  Lieber  on  Political  Hermeneuiics,  ch. 
1.  In  the  class  of  cases  now  under  consideration,  the  abso- 
lute meaning  of  the  terms  employed  have  been  for  the  most 
part  clear ;  but  in  their  application  to  the  subject  matter,  or 
in  view  of  the  paramount  object  of  the  lawmaker,  they  have 
■been  deprived  of  some  of  their  usual  force  and  restricted,  in 
their  operation.  Such  results  have  obtained  because  it 
has  appeared  to  the  courts,  looking  at  the  statutory  language 
and  its  effect,  that  it  was  manifest  that  it  could  not  have  been 
the  design  of  those  who  enacted  the  law,  to  give  the  words 
the  very  power  which  they  inherently  possess.  When  an  act  is 
authorized  or  directed  to  be  done  by  a  written  law,  and  the 
time  and  modes  of  doing  such  act  are  declared,  it  must,  of 
necessity,  oftentimes,  be  a  question,  in  each  particular  in- 
stance, whether  the  time  or  mode  so  declared  was  so  material 
in  the  eyes  of  the  lawmaker,  that  he  has  made  either  an  in- 
dispensable part  of  the  affair.  This  idea  is  expressed  by 
Lord  Mansfield  in  the  case  of  Hex  v.  Loxdale,  1  Burr.  447, 
in  which  he  says :  "  There  is  a  known  distinction  between 
•circumstances  which  are  of  the  essence  of  a  thing  required  to 
be  done  by  an  act  of  Parliament,  and  clauses  merely  direc- 
tory." What  has  been  made  a  matter  of  the  essence  of  the 
•thing,  can  be  ascertained  only  by  judicial  construction.     In 


210  NEW  JERSEY  SUPREME  COURT. 


Proprietors  of  Morris  Aque<luct  ads.  Jones. 


some  cases  it  is  palpably  clear,  that  time  or  mode  is  not 
essential.  Thus  this  court  properly  maintained  in  Morrel  v. 
Buckley,  Spencer  668,  that  the  provision  requiring  the  clerk 
on  issuing  a  writ  of  attachment,  to  enter  in  a  book  to  be  kept 
for  that  purpose,  the  names  of  the  parties  and  the  time  of 
issuing  and  sealing  the  writ,  was  merely  directory.  The 
ground  of  that  judgment  is,  that  although  the  duty  imposed 
on  the  clerk  is  expressed  in  clear  terms,  it  could  not  have 
been  the  design  to  make  the  legality  of  the  proceedings 
depend  on  the  obedience  of  the  officer  to  this  mandate.  The 
inconvenience  and  unjust  consequences  of  such  a  circumstance 
would  have  been  so  great  as  to  forbid  the  court  from  con- 
cluding that  such  a  purpose  was  intended,  in  the  absence  of 
express  terms,  or  something  equivalent  compelling  to  such  a 
conclusion.  This  is  an  illustration  of  the  plain  text,  being 
controlled  by  the  plain  spirit  of  the  law. 

The  case  of  The  City  of  Lowell  v.  Hadley,  8  Mete.  195,. 
affords  a  similar  illustration.  The  city  ordinance  required 
the  superintendent  of  streets  to  make  a  report  to  the  auditor 
of  accounts,  of  the  expense  incurred  in  building  a  sidewalk, 
"within  ten  days  from  the  finishing  of  the  sidewalk,"  and 
the  result  reached  was,  that  the  provision  was  simply  directory. 
A  regulation  that  if  the  report  of  the  officer  was  not  made 
within  the  period  specified,  the  city  should  lose  the  expenses 
incurred  by  it,  would  have  been  preposterous,  and  hence  the 
refusal  so  to  interpret  the  general  command  of  the  law^ 
These  cases,  and  many  others  of  a  like  kind,  rest  upon  a  sure 
foundation.  They  are  examples  of  judicial  rejections  of  the 
letter  of  the  act  to  prevent  it  running  into  absurdity.  Some 
of  the  cases  seem  to  me  to  have  been  pushed  to  an  extreme, 
and  have  decided  that  circumstances  were  non-essentials, 
which  appear  to  have  been  of  the  very  essence  of  the  par- 
ticular transaction.  But  the  rule  being  so  general,  it  is- 
hardly  surprising  that  the  results,  each  conclusion  resting  on 
peculiar  grounds,  should  not  be  able  to  give  universal  satis- 
faction. However  this  may  be,  I  am  sure  that  the  following 
proposition    is    established    by  the    large    majority  of  these- 


JUNE  TERM,  1873.  211 

Proprietors  of  Morris  Aqueduct  ads.  Jones. 

authorities,  viz. :  That  every  requirement  of  the  act  must  have 
the  full  effect  the  language  imports,  unless  such  interpretation 
of  the  words  will  lead  to  great  inconvenience,  injustice,  or  a 
subversion  of  some  important  object  of  the  act. 

Judging  the  question  now  considered  by  this  text,  it  is^ 
clear  that  the  petitioner  cannot  stand  on  the  ground  assumed 
by  him.  It  has  been  already  said,  that  the  language  of  this 
provision  in  question  is  too  plain  t©  admit  of  discussion. 
The  right  of  appeal  is  given,  but  it  is  limited  by  two  condi- 
tiens  :  First,  it  must  be  made  to  the  first  or  second  term  of 
the  court ;  and,  second,  a  notice  of  such  appeal  must  be  given 
two  weeks  before  such  term.  These  restrictions  upon  the 
right  are  reasonable ;  they  harmonize  with  the  general 
scheme  of  this  law,  and  they  lead  to  no  inequitable  result. 
On  what  ground  can  they  be  dispensed  with  ?  If  the  ti»me 
for  notice  can  be  disregarded,  so  also  can  the  time  in  which 
the  appeal  is  required  to  be  made.  It  is  obvious,  that  if  it 
should  be  declared  that  this  provision  is  merely  directory,. 
that  it  simply  suggests  a  convenient  mode  of  proceeding,, 
carrying  with  it  no  mandatory  force,  no  rule  whatever  exists,. 
either  as  to  the  time  of  appealing  or  of  giving  notice.  Such 
a  conclusion  has  the  effect  of  entirely  abolishing  the  require- 
ment in  question  ;  plain  language  aiming  at  a  reasonable  pur- 
pose, is  not  permitted  to  ojDerate  at  all.  I  find  no  precedent 
for  such  a  determination,  and  it  seems  opposed  to  all  rational 
rules  of  statutory  construction.  The  first  ground  should,  I 
think,  be  overruled. 

A  second  point  remains  to  be  considered  :  A  statute  pur- 
porting to  be  a  supplement  to  the  practice  act,  was  passed 
on  the  14th  of  March,  1873,  and  it  is  contended  that  this  law 
having  a  retrospective  operation,  validates  tke  notice  of  appeal 
which  has  been  given  in  the  present  case. 

In  the  learned  and  able  brief  of  the  counsel  of  the  aque- 
duct company,  the  broad  position  is  taken,  in  answer  to  the 
position  just  indicated,  that  this  statute,  if  it  has  the  retro- 
active effect  ascribed  to  it,  is  void,  on  the  ground  of  ite 
unconstitutionality.     It  is  insisted,  that  on  the  running  out 


212  NEW  JERSEY  SUPREME  COURT. 

Proprietors  of  Morris  Aqueduct  ads.  Jones. 

of  the  time  limited  for  the  appeal  and  notice,  the  rights  and 
obligations  acquired  or  imposed  by  the  award  of  the  commis- 
sioners, became  vested  and  absolute,  and  that,  therefore, 
they  cannot  be  disturbed  or  impaired  by  legislative  action. 
Many  cases  of  the  utmost  weight  are  cited,  which  appear  to 
fully  sustain  that  proposition.  It  certainly  is  a  formidable 
suggestion,  that  after  a  right  has  become  perfectly  and  ulti- 
mately established  under  the  existing  forms  of  law,  that  the 
law  making  power  can,  at  its  pleasure,  throw  the  subject 
open  to  a  further  litigation.  If  this  be  lawful,  it  is  obvious 
that  it  is  difficult  to  say  what  adjudication  becomes  final.  To 
say  the  least,  my  prepossesyions  are  opposed  to  such  a  theory, 
but  the  question  is  one  of  great  importance,  and  has  never 
been  in  its  present  form  before  our  courts,  and  should 
not,  consequently,  be  decided  except  when  the  particular  case 
renders  such  a  course  necessary.  Such  an  emergency  does 
not  seem  to  me,  at  present,  to  exist,  because,  according  to  my 
construction  of  the  law  in  question,  it  has  not  a  retrospective 
operation  with  respect  to  the  point  in  controversy.  The 
language  of  this  act  is  as  follows  :  "  That  in  any  and  every 
case  where  proceedings  have  been,  or  shall  be  taken  by  any 
private  corporation  authorized  to  exercise  or  use  the  right  or 
power  of  eminent  domain,  to  exercise  or  employ  that  right 
or  power  to  acquire  any  lands,  tenements,  &c.,  and  an  appeal 
has  been  or  shall  be  taken  from  the  award  of  commissioners, 
and  notice  is  required  by  the  charter  of  such  corporation  to  be 
given  of  the  presentation  of  the  petition,  or  of  the  making 
of  the  application  to  the  appellate  court  to  enter  an  appeal, 
five  days'  notice  of  the  presentation  of  such  appeal,  or  of  the 
making  of  such  apj)lication  served  upon  the  opposite  p'irty, 
in  case  of  an  individual,  personally,  or  left  at  his  or  her 
usual  place  of  abode ;  or,  in  case  of  a  corporation,  by  deliv- 
ering the  same  to  the  president,  secretary,  or  treasurer  thereof, 
personally,  or  leaving  the  same  at  the  principal  office  of  the 
company,  &c.,  shall  be  sufficient  notice  and  sufficient  service 
thereof." 

That  this  act  provides  for  notice  in  case  of  appeals,  which 


JUNE  TERM,  1873.  213 

Weber  v.  Morris  and  Essex  R.  E.  Co. 

••should  be  taken  in  the  future,  and  those  which  had  been  there- 
tofore taken,  is  very  clear;  but  this  circumstance  does  not  in 
the  kast  settle  the  question  in  dispute,  which  is,  whether  it 
relates  to  a  notice  of  appeal  which  had  been  given  before  its 
enactment.  I  have  not  found  a  word  in  this  act  manifesting 
sucii  a  purpose.  The  entire  clause  relating  to  the  notice  denotes 
future  action.  In  case  of  a  corporation,  the  declaration  is,  that 
five  days'  notice  served  "by  d-elivering  the  same,  &c.,"  "or 
leaving  the  same  at  the  principal  office,  &c.,"  shall  be  sufficient. 
The  expression,  served  by  delivering,  or  by  leaving,  cannot, 
without  distortion,  be  made  to  mean  a  thing  already  done ;  in 
tiieir  natural  and  enforced  sense,  the  terms  signify  the  reverse. 
To  give  the  section  the  force  contended  for,  would  require  to 
reverse  the  legal  rule  of  construction,  which  enjoins  every 
reasonable  endeavor  so  to  interpret  the  statutory  text,  as  to 
give  the  law  a  prospective  and  not  a  retroactive  effect. 

I  think  the  Circuit  Court  should  be  advised  to  dismiss  this 
appeal,  on  the  ground  that  the  notice  thereof  was  not  given 
witiiin  the  time  prescribed  by  the  statute. 

Judgment  affirmed,  8  Vr.  556. 

Cited  in  Douglass  v.  Chosen  Freeholders  of  Essex  Co.,  9  Vr.  214 ;  City  of 
Elizabeth  v.  Hill,  10  Vr.  555  ;  Williamson  v.  N.  J.  South.  M.  R.  Co.,  2  Stew. 
Eq.  311 ;  Ellison  v.  Lindsley.  6  Stew.  Eq.  258  ;  Boylan  v.  Kelly,  9  Steio.  Eq. 
-331. 


•CHRISTIAN  WEBER  (WHO  SUES  FOR  THE  USE  OF  THE  JER- 
SEY CITY  INSURANCE  COMPANY,)  v.  THE  MORRIS  AND 
ESSEX  RAILROAD  COMPANY. 

1.  A  person  having  his  house  and  furniture  burned  from  the  careless- 
ness of  agents  of  a  railroad  company,  is  entitled  to  recover  the  entire 
amouni  of  his  loss,  in  a  suit  against  such  company,  notwithstanding 
he  has  been  paid  by  an  insurance  company  the  sum  for  which  they 
were  insured. 

2.  If  such  party  by  mistake  deducts  from  his  claim  in  such  suit  tlie 
amount  of  the  insurance  money,  the  judgment  in  the  first  suit,  if 
clearly  pleaded,  will  bar  a  further  recovery, 

•3.    The  pleadings  in  this  case  considered. 


On  demurrer  to  replication. 


214  NEW  JERSEY  SUPREME  COURT. 

Weber  v.  Morris  and  Essex  R.  R.  Co. 

In  the  several  counts  of  the  declaration  in  this  case,  it  was- 
stated  that  the  plaintiff,  Christian  Weber,  being  the  owner  of 
a  certain  house  and  household  furniture,  insured  them  for  the 
sum  of  $800  in  tlie  Jersey  City  Insurance  Company,  and 
that  said  house  and  furniture  were  subsequently  destroyed  by 
fire,  communicated  by  sjwrks  from  the  locomotive  of  the  de- 
fendants, and  by  the  carelessness  of  the  defendants  and  their 
agents,  by  means  whereof  the  said  insurance  company  were  com- 
pelled to  pay  and  did  pay  the  amount  of  said  insurance. 

To  this  declaration  the  defendant  pleaded  in  the  usual  form, 
a  former  recovery. 

The  replication  was  in  the  words  following,  viz. :  "  And 
the  said  plaintiff  as  to  the  plea  of  the  said  defendants  by  them 
above  pleaded,  saith  that  he,  the  said  plaintiff,  by  reason  of 
anything  by  the  said  defendants  in  that  plea  alleged,  ought 
not  to  be  barred  from  having  and  maintaining  the  aforesaid 
action  thereof  against  the  said  defendants,  because  he  saith 
that  there  was  no  action  instituted  in  said  Supreme  Court,, 
and  no  recovery  had  thereon  at  the  time  and  in  the  manner 
as  in  said  plea  alleged  to  have  been  pending  for  the  recovery 
of  damages  for  the  same  grievances  in  the  plaintiff's  declara- 
tion in  this  suit  set  forth  before  the  commencement  of  thi& 
suit,  and  further  saith,  that  he,  the  said  Christian  Weber,  did 
not,  for  the  use  of  the  Jersey  City  Insurance  Company,  re- 
cover by  the  consideration  and  judgment  of  the  said  Supreme 
Court,  at  the  June  Term  of  said  court,  in  the  year  eighteen 
hundred  and  sixty-nine,  nor  at  any  other  time,  against  the 
said  defendants,  for  the  same  grievances  in  the  declaration  in 
this  cause  set  forth,  the  sum  of  twenty-seven  hundred  and  six 
dollars  and  fifty-two  cents,  nor  any  other  sum  of  money,  as 
and  for  the  same  damages  and  grievances  in  the  plaintiff's 
declaration  in  this  cause  set  forth.  And  further  saith,  that 
there  remains  no  record  of  any  proceedings  by  the  said  plain- 
tiffin  the  Supreme  Court  aforesaid  against  the  said  defendants, 
nor  of  any  judgment  recovered  thereon,  and  no  judgment 
remaining  in  full  force  and  effect  in  the  same  court  against  the 
said  defendants  for  the  same  grievances  and  cause  of  actioa 
in  the  declaration  in  this  cause  stated  and  set  forth. 


JUNE  TERM,  1873.  215 


Weber  v.  Morris  and  Essex  E.  K.  Co. 


"And  this  the  plaintiff  prays  may  be  inquired  of  by  the 
country,  &c." 

Argued  at  February  Term,  1873,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Depue. 

For  the  defendant,  Thomas  N.  McCarter. 

For  plaintiff,  Chas.  Borcherling. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  From  the  indications  of  the 
record  in  this  case  it  would  seem  that  the  plaintiff  cannot 
successfully  maintain  this  suit.  The  facts  appear  to  be  these : 
that  Christian  Weber,  the  plaintiff,  recovered  judgment 
against  the  defendant,  the  railroad  company,  for  the  burning 
of  his  house  and  furniture  by  the  careless  use  of  its  locomo- 
trves.  That  a  suit  was  brought  founded  on  this  wrong,  and 
at  the  time  of  the  trial  of  that  issue  the  plaintiff  had  been 
paid  by  the  Jersey  City  Insurance  Company  the  amount  for 
which  the  property  destroyed  had  Reen  insured,  and  that  his 
damages  being  supposed  to  have  been  to  that  extent  compen- 
sated, it  was  but  the  residue  of  the  loss  which  was  embraced 
in  the  verdict.  This  was  plainly  an  error.  The  plaintiff 
was  entitled  to  recover  the  entire  damages  inflicted  upon  him 
by  the  misconduct  of  the  defendant.  The  railroad  company 
was  a  wrong-doer,  and  had  no  concern  in  the  contracts  of  flie 
plaintiff  with  respect  to  his  indemnification  in  case  of  the 
loss  of  his  property  by  fire.  A  person  committing  a  tort 
cannot  set  up  in  mitigation  of  damages  that  somebody  else, 
with  whom  he  had  no  connection,  has  either  in  whole  or  in 
jiart  indemnified  the  party  injured.  The  recovery  should 
liave  been  to  the  entire  extent  of  the  loss  sustained  by  the 
burning,  and  in  such  event  the  insurance  company  would 
have  had  an  equitable  claim  to  be  reimbursed  by  the  plain- 
tiff for  the  amount  of  insurance  money  which  it  had  paid, 
'fhis  right  of  the  insurance  company  is  plainly  indisputa- 
ble.    So  after  it  has  paid  the  insurance,  its  right  to  sue  in 


216  NEW  JERSEY  SUPREME  COURT. 

Weber  v.  Morris  and  Essex  K.  R.  Co. 

the  name  of  the  party  injured  for  the  damages  sustained  by 
him,  in  ease  he  refuses  to  prosecute,  is  equally  well  settled. 

But  while  these  rights  of  the  insurance  company  are  not 
to  be  denied,  it  is  to  be  remembered  that  such  rights,  so  far 
as  the  railroad  company  is  concerned,  are  entirely  collateral 
to  those  of  the  party  directly  injured.  The  insurance  com- 
pany had  no  direct  interest  in  or  title  to  the  property  which 
has  been  burned.  The  burning  of  the  property  insured 
brought  about  a  damage  to  it  which  was  too  remote  to  be 
the  foundation  of  an  action.  This  has  been  repeatedly  ad- 
judged. Under  such  circumstances  the  claims  of  the  under- 
writer are  completely  of  an  equitable  nature,  being  the  right 
to  be  subrogated,  in  certain  conditions  of  the  case,  to  the 
party  immediately  wronged.  But  such  a  right,  it  is  quite 
obvious,  cannot  be  noticed  directly  in  the  course  of  an  action 
at  law.  Being  altogether  incidental  to  the  suit  and  outside 
of  the  issue,  it  cannot  affect  the  trial  or  the  judgment.  This 
principle  has  been  lost  sight  of  in  the  present  case,  for  the 
declaration  is  drawn  apparently  upon  the  theory  that 
the  cause  of  action  of  the  plaintiff  is  to  be  helped  by 
the  connection  of  the  insurance  company  with  him.  But 
this  is  not  so,  and  the  consequence  is  that  every  statement 
with  respect  to  the  insurance  company  contained  in  this 
pleading  is  mere  surplusage,  and  would  have  been  struck  out 
on  motion.  The  common  statement  following  the  name  of 
the  plaintiff  in  a  suit  at  law,  that  the  plaintiff  sues  for  tlie 
use  of  a  third  party,  is  a  mere  notice  to  the  defendant,  aside 
from  the  legular  proceedings  in  the  cause,  that  such  third 
party  claims  an  interest  in  the  action.  Such  a  memorandum 
has  no  effect  upon  the  cause  of  action  as  spread  upon  the 
record.  If  this  declaration  had  been  purged  of  its  irrele- 
vancies,  the  subject  of  the  suit  would  have  been  placed  in  so 
-clear  a  light  that  it  is  not  probable  that  the  replication  would 
have  assumed  the  objectionable  form  in  which  it  now  stands. 
The  real  and  only  question  which  can  be  raised  is,  whether 
Mr.  Weber,  independently  of  his  connection  with  the  insur- 
ance company,  has  a  subsisting  cause  of  action  against  this  de- 


JUNE  TERM,  1873.  217 

Weber  v.  Morris  and  Essex  R.  R.  Co. 

fendant  for  the  burning  of  his  house  and  furniture.  If  he 
has  already  recovered  for  that  grievance,  and  that  judgment 
remains  in  full  force,  it  is  clear  that  he  cannot  sue  again  for 
the  same  grievance,  even  though  he  can  clearly  show  that  the 
jury  did  not  comprise  in  their  finding  a  certain  part  of  the 
damages  sustained  by  him.  He  cannot  do  this  because  his 
cause  of  action  was  an  entirety.  The  law  will  not  permit 
him  to  break  it  into  fragments  and  base  a  suit  on  each  frag- 
ment. If  the  verdict  was  not,  from  mistake,  co-extensive 
with  his  claim,  his  remedy  was  to  apply  to  set  it  aside  and 
have  a  re-assessment  by  a  second  jury.  As  long  as  the  for- 
mer judgment  stands,  it  is  conclusive  as  to  the  fact  that  all 
the  damages  which  were  recoverable  for  this  burning  were 
and  are  embraced  in  that  recovery.  In  that  respect  that 
record  cannot  be  either  avoided  or  contradicted. 

The  principles  of  law  thus  stated,  seem  to  me  too  rudi- 
mentary to  require  the  citation  of  any  authority  in  their 
support,  but  the  following  authorities  will  show  how  they 
have  been  applied  in  cases  analogous  to  the  present  one. 
Hart  et  al  v.  Western  B.  R.  Co.,  13  3IetG.  100;  3Iason  v. 
Sainsbury,  3  Doug.  61 ;  Yates  v.  Whyte,  4  Bing.  N.  C.  272 ;. 
JRockingham  Mutual  Ins.  Co.  v.  Bosher,  39  Maine  253. 
These  rules  were,  in  substance,  declared  in  the  opinion  read, 
when  this  case,  in  another  aspect,  was  before  this  court.  6 
Vroom  410. 

By  an  application  of  the  rules  of  law  thus  stated,  th.e  legal 
issue  now  before  the  court  can  be  readily  disposed  of. 

The  replication,  which  is  demurred  to,  is  intended  as  an 
answer  to  the  plea  setting  up  the  former  recovery.  From  the 
careless  and  inartistic  manner  in  which  it  is  drawn,  it  is 
somewhat  difficult  to  put  a  satisfactory  construction  upon  it. 
In  substance,  however,  it  appears  to  contain  two  averments  of 
facts,  which  are  so  diverse  that  they  require  to  be  separated. 
The  first  of  these  consists  in  the  allegation  that  the  plaintiff, 
Christian  Weber,  did  not  recover  a  judgment,  &c.,  for  the 
iLte  of  the  Jersey  City  Insurance  Company,  for  the  same  griev- 
ances set  forth  in  the  declaration.     This  allegation  is  founded 


218  NEW  JERSF.Y  SUPREME  COURT. 


Weber  v.  Morris  and  Essex  R.  R.  Co. 


on  the  theory  already  exploded,  that  the  interest  which  the 
insurance  company  may  have  in  the  moneys,  can  in  any  wise 
affect  this  action.  The  only  question  that  can  arise  is,  whether 
the  former  judgment  is  for  the  same  grievances  now  sued  for. 
This  part  of  the  replication,  therefore,  is  no  answer  to  the  plea. 
Upon  motion,  it  would  have  been  struck  out. 

But  the  concluding  clause  of  this  pleading  seems  to  me  to 
be  a  reply,  in  law,  to  the  plea.  To  a  plea  of  judgment  recov- 
ered, it  is  of  course  a  legal  answer  to  deny  that  such  judgment 
was  for  the  same  causes  of  action  set  forth  in  the  declaration. 
The  concluding  part  of  this  replication  amounts,  as  it  would 
appear,  to  an  averment  of  this  character.  The  allegation  is, 
■^*  that  there  remains  no  record  of  any  proceedings,  &c,,  nor  of 
any  judgment  recovered  thereon,  and  no  judgment  remaining 
in  full  force  and  effect,  &c.,  for  the  same  grievances  and  cause 
•of  action  in  the  declaration  in  this  cause  stated  and  set  forth." 
This  is  an  argumentative  denial  that  the  causes  of  action  now 
sued  on  are  the  same  with  those  embraced^  in  the  former  re- 
covery. There  is  no  denial  that  there  is  a  former  recovery, 
but  it  is  alleged  that  there  is  no  former  recovery  for  these  same 
grievances;  if  this  is  so,  then  the  present  suit  is  not  founded 
on  the  same  cause  of  action  embraced  in  the  former  judgment. 
This  is  very  informal,  but  it  seems  sufficient  to  save  the  repli- 
<;ation  on  a  general  demurrer.  The  remedy  of  the  defendant 
was  to  move  to  strike  out  the  whole  replication  as  double,  un- 
certain, and  in  all  respects  faulty. 

However,  on  the  ground  last  indicated,  the  judgment  must 
be  for  the  plaintiff,  with  leave  to  defendant  to  plead  anew,  &c. 

CiTBD  in  State,  ex  rel.  Wilson,  v.  Longstreet,  9  Vr.  312. 


JUNE  TERM,  1873.  219 


Morrison  v.  Inhabitants  of  Township  of  Bernards. 


THOMAS  A.  MORRISON,  THOMAS  H.  MORRISON  AND  GAR- 
DINER S.  HUTCHENS  v.  THE  INHABITANTS  OF  THE 
TOWNSHIP  OF  BERNARDS,  IN  THE  COUNTY  OF  SOM- 
ERSET. 

1.  Commissioners  being  authonzeu  to  borrow  money  "  on  the  faith  and 
credit "  of  a  township,  and  to  execute  bonds  therefor  "  under  their 
hands  and  seals  respectively  " — Held,  that  power  was  thereby  given 
to  make  such  bonds  in  the  name  of  the  township. 

2.  Held  further,  that  a  suit  would  lie  on  such  bonds,  although  the  act 
provided  a  particular  mode  of  raising  the  money  to  pay  them. 

3.  The  statute  further  providing  tliat  no  bonds  should  be  issued  by  such 
.  commissioners,  without  the  written  consent  of  a  majority  of  the  tax 

payers,  and  which  consent  was  required  after  being  proved  to  be  filed 
in  the  county  clerk's  office— BeW,  that  the  declaration  must  show  a 
compliance  with  such  requirements. 
4..  The  statute  also  required  such  bonds  to  be  certified  "across"  their 
face  by  the  county  clerk,  to  have  been  registered,  and  declared  that 
no  bonds  should  be  valid  unless  so  registered  ;  held,  that  it  must  also 
appear  in  the  declaration,  that  such  acts  have  been  done. 


On  demurrer  to  declaration. 

The  action  was  in  debt,  and  the  declauation  stated  that  the 
defendants,  on  the  1st  of  January,  1869,  by  and  under  the 
hands  and  seals  of  J.  H.  A.,  J.  G.  and  O.  R.  T.,  commissioners 
of  said  township,  duly  appointed  and  sworn  as  directed  by  the 
provisions  of  a  certain  act  of  the  legislature  of  New  Jersey, 
entitled  "  An  act  to  authorize  certain  towns  in  the  counties  of 
Somerset,  Essex  and  Union,  to  issue  bonds  and  take  stock  in 
the  Passaic  Valley  and  Peapack  Railroad  Company,"  ap- 
proved April  9th,  1868,  made  their  bond,  &c.,  and  did  thereby 
acknowledge  that  they  owed  to  the  bearer,  &c.  That  it  was 
by  said  bond  then  and  there  declared  that  the  said  bond  was 
one  of  a  series  of  like  tenor,  amounting  in  the  whole  to  the 
sum  of  |1 27,000,  issued  on  the  faith  and  credit  of  said  town- 
ship, in  pursuance  of  the  act  aforesaid. 

There  were   averments   that   there    were   certain  coupons 


220  NEW  JERSEY  SUPREME  COURT. 


Morrison  v.  Inhabitants  of  Township  of  Bernards. 


attached  to  said  bond,  and  the  breach  assigned  was  that  these 
coupons  when  presented  for  payment  were  not  paid. 

There  was  a  penal  count,  similar  in  form  and  substance^ 
founded  on  another  of  this  series  of  bonds. 

Tiie  demurrer  was  general. 

Argued  at  February  Term,  1873,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Depue. 

For  the  plaintiffs,  C.  Parker. 
For  the  defendants,  J.  Vanatta. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  first  fault  found  with  this 
declaration  is,  that  it  dees  not  show  that  the  bonds  sued  on 
are  those  of  the  inhabitants  of  the  township  of  Bernards,  the 
defendant  in  the  action.  The  theory  of  the  counsel  of  the 
defendant  seems  to  be,  that  the  act  of  the  9th  of  April,  1868, 
{Pamph.  Laws,  p.  915,)  which  relates  to  this  subject,  does  not 
authorize  the  commissioners  to  create  these  obligations  in  the 
name  of  the  townsliip. 

But  this  construction,  T  think,  is  not  consonant  either  with 
the  language  or  spirit  of  the  act.  The  general  scope  of  this 
law  is  this :  It  provides  for  the  appointment,  in  a  prescribed 
mode,  of  three  commissioners,  who  are  empowered  "  to  bor- 
row on  the  faith  and  oredit"  of  the  township,  certain  sums  of 
money,  "  and  to  execute  bonds  therefor,  under  their  hands 
and  seals  respectively."  This  language  is  clearly  indicative 
of  the  legislative  purpose  to  bind  the  township  to  the  pay- 
ment of  the  money  thus  to  be  borrowed.  This  money  was 
designed  for  the  use  of  the  township,  in  the  construction  of 
what  must  be  deemed  a  public  work,  if  we  are  to  give  the- 
faintest  semblance  of  legality  to  the  law  itself.  So  the  loan 
is  to  be  obtained  on  the  faith  and  credit  of  the  township,  a 
pledge  which  seems  naturally  to  imply  that  the  obligation  of 
payment  is  to  be  put  upon  the  corporate  body.  And  a  simi- 
lar implication,  but  one  of  greater  force,  arises  from  the  direc- 


JUNE  TERM,  1873.  221 

Morrison  v.  Inhabitants  of  Township  of  Bernards. 

tioii  that  bonds  are  to  be  given  under  the  hands  and  seals  of 
the  commissioners,  for  an  instrument  of  that  kind  cannot  be 
created  without  the  presence  of  an  obligor;  and,  indeed,  it 
seems  like  a  solecism  to  say  that  the  statute  calls  for  the 
making  of  a  bond,  but  that  nobody  is  to  be  bound  by  it. 
Whether  suits  in  the  ordinary  form  will  lie  upon  the  instru- 
ments thus  contemplated  and  authorized,  or  whether  the  only 
remedy  is  specifically  appointed  by  the  statute  itself,  is  a 
question  which  will  be  considered  in  the  sequel,  but  which  is 
entirely  distinct  from  the  inquiry  as  to  the  sort  of  obligation 
which  it  was  intended  the  commissioners  should  issue.  The 
mere  fact  that  the  seals  of  the  commissioners  are  to  be  used,  is 
of  no  significance,  as  the  form  of  the  transaction  was  alto- 
gether under  the  control  of  the  legislature.  It  was  undenia- 
bly the  intention  to  bind  somebody,  and  as  it  cannot  be  pre- 
tended that  the  commissioners  were  bound,  that  somebody 
can  be  none  other  but  the  township.  There  are  other  expres- 
sions and  indications  in  this  act  which  are  equally  demonstra- 
tive of  the  same  intention,  as  that  just  stated,  but  it  does  not 
appear  to  be  necessary  to  pursue  the  subject  further.  These 
instruments  in  suit,  I  think,  were  properly  made  in  the  name 
of  the  corporation. 

In  the  second  place,  it  is  insisted  that,  on  the  admission 
that  the  bonds  in  question  are  to  be  regarded  as  the  obliga- 
tions of  the  townsliip,  a  suit  will  not  lie  upon  them,  because 
the  statute  itself  prescribes  the  mode  in  which  the  money  is 
to  be  raised,  and  that  it  cannot  be  raised  in  any  other  way. 
In  the  language  of  the  brief  of  counsel,  the  proposition  thus 
asserted  is  expressed  in  this  form  :  "  Where  the  right  is 
given  by  a  statute  which  prescribes  a  remedy,  the  remedy 
thus  prescribed  is  the  only  one  that  can  be  had." 

Among  the  cases  cited  in  support  of  this  doctrine,  is  that 
of  Reook  V.  The  Mayor,  &c.,  of  Newark,  4  Vroom  129.  But 
I  think  that  neither  this  authority,  nor  any  of  the  others 
which  are  referred  to,  are  at  all  applicable  in  the  present 
case.     The  general  rule  undoubtedly  is,  that  when  the  right 

Vol.  VII.  14 


222  NEW  JERSEY  SUPREME  COURT. 

Morrison  v.  Inhabitants  of  Township  of  Bernards. 

■which  is  to  be  vindicated  is  altogetlier  statutory,  and  a  remedy, 
in  case  of  a  withholding  of  such  right,  is  prescribed,  such 
remedy  can  alone  be  resorted  to.  Such  was  adjudged  to  be 
the  case  in  the  decision  just  cited  from  4  Vroom. 

But  in  the  present  instance,  there  is  a  contrary  intent  appa- 
rent on  the  face  of  this  statute.  Why  is  a  bond  to  be  given 
to  the  lender  of  the  money,  if  a  suit  cannot  be  brought  upon 
it  ?  The  statute  exacts  a  formal  promise,  under  seal,  to  pay 
the  specified  sum  at  a  particular  time,  and  the  idea  seems  in- 
admissible that  this  is  to  be  looked  upon  as  a  mere  formality, 
destitute  of  all  practical  effect.  The  capacity  to  support  a 
suit,  is  a  part  of  the  nature  of  sealed  instruments,  stipulating 
for  the  payment  of  money.  When,  therefore,  the  statute 
directs  a  bond  to  be  given,  it  substantially  declares  that  an 
action  shall  lie  if  such  obligation  should  not  be  redeemed. 
It  would  be  quite  as  reasonable  to  hold  that  the  seals  on 
these  bonds  do  not  import  a  consideration,  as  it  would  be  to 
hold  that  the  bonds  themselves  are  not  enforceable  by  suit. 
I  can  see  nothing  in  the  provisions  of  this  act  which  will 
prevent  these  instruments  from  being  put  into  effect  accord- 
ing to  the  qualities  usually  inherent  in  that  class  of  obliga- 
tions to  which  they  belong.  The  statutory  regulations  relat- 
ing to  the  mode  of  the  assessment  of  the  moneys,  and  the  im- 
position of  the  burthen  upon  particular  lands,  can  be  carried 
into  full  effect.  But  with  these  matters,  the  holder  of  the 
bonds  has  no  connection.  In  this  particular,  I  find  nothing 
exceptionable  in  a  suit  upon  these  instruments. 

A  third  objection  is  urged  against  the  sufficiency  of  this 
pleading.  This  arises  from  the  fact  that  the  plaintiff  has  not 
shown  the  legal  power  of  the  commissioners  to  make  the  bonds 
which  form  the  basis  of  the  action. 

The  second  section  of  the  statute  in  question  empowers  the 
commissioners  to  borrow  money,  but  provides  that  "  no  such 
debt  shall  be  contracted  or  bonds  issued  by  said  commission- 
ers, &c.,  until  the  written  consent  shall  have  been  obtained 
of  a  majority  of  the  tax  payers."  There  is  a  further  direc- 
tion, that  the  signatures  to  such  consent  shall  be  proved  by 


JUNE  TERM,  1873.  223 

Morrison  v.  Inhabitants  of  Township  of  Bernards. 

■one  of  the  commissioaers,  and  that  the  fact  that  the  persons 
signing  such  consent  are  a  majority  of  the  tax  payers  of  such 
township,  and  represent  a  majority  of  the  real  property  of 
such  township,  shall  be  proved  by  the  affidavit  of  the 
assessor,  and  that  such  authentications  shall  be  filed  in  the 
-office  of  the  clerk  of  the  county,  and  that  they,  or  a  certified 
-copy  thereof,  shall  be  received  in  evidence  of  the  facts  therein 
contained  in  any  court  of  this  state. 

It  thus  appears  that  these  commissioners  had  no  authority 
to  issue  the  bonds  in  controversy,  unless  the  consent  of  the 
requisite  number  of  tax  payers  was  given,  and  it  is  insisted, 
that  as  this  consent  is  an  essential  element  in  the  plaintiff's 
case,  sucli  fact  must  appear  in  the  declaration. 

The  counsel  of  the  plaintiff,  assailing  this  position,  replies 
that  it  is  shown  that  these  bonds  were  formally  made  and 
issued,  and  have  fairly  come  into  the  possession  of  the  pres- 
ent holder,  and  that  the  defendant  is  estopped  from  denying 
that  the  conditions  existed  which  entitled  its  own  officers  to 
create  these  instruments.  But  I  cannot  assent  to  this  view. 
There  are,  undoubtedly,  instances  to  the  effect  that  a  corpora- 
tion will  not  be  allowed  to  gainsay  the  act  of  their  officers  on 
the  pretext  of  a  want  of  competency  to  do  the  particular  act 
in  question.  But  this  rule  obtains  only  when  the  authority 
which  is  challenged  depends  upon  the  existence  of  facts  ex- 
trinsic of  the  charter,  the  knowledge  of  which  is  accessible 
only  to  the  corporators,  and  which  are  not  known  to  the 
party  dealing  with  the  corporation.  And  it  may  also  be 
doubted  whether  the  principle  is  ever  applicable  except  when 
the  officer  who  ostensibly  gives  the  assent  of  the  company  to 
any  transaction,  is  the  general  agent  of  the  corporate  body. 
But  this  defence,  that  the  officer  has  done  an  act  in  contra- 
vention, or  in  excess  of  the  chartered  right,  will  not  be  per- 
mitted to  prevail  when  the  person  in  whose  favor  such  act 
has  been  done,  is  presumed  to  have  been  ignorant  of  such 
transgression.  But  when  the  provisions  of  a  statute  have 
been  infringed  or  disregarded  by  public  officers,  and  such 
provisions  are  publicly  known,  the  statute  must  have  effect, 


224  NEW  JERSEY  SUPREME  COURT. 

Morrison  v.  Inhabitants  of  Township  of  Bernards. 

and  no  estoppel  arising  from  such  official  misconduct  can  be 
interposed.  This  is  the  doctrine  laid  down,  with  marked 
emphasis,  by  Lord  Denman,  in  Regina  v.  White,  4  Ad.  & 
E^.  {N.  S.)  101,  and  such  doctrine  can  never  be  more  appli- 
cable than  in  the  present  o^se.  The  statute  in  question  is  a 
public  act;  the  commissioners  are  the  special,  and  not  the 
general  agent?  of  the  corporate  body,  and  their  capacity  to 
issue  these  bonds  is  made  dependent  on  the  vote  of  a  speci- 
fied body  of  persons.  In  general,  those  dealing  with  a  sjiecial 
agent  must  inform  themselves,  at  their  peril,  of  the  extent  of 
the  authority  of  such  agent,  and  the  present  is,  certainly, 
not  an  occasion  in  which  the  rigor  of  this  principle  should 
be  in  any  degree  relaxed.  The  act  directs  that  the  evidence 
of  the  existence  of  the  authority  of  the  commissioners  shall 
be  put  upon  the  public  files,  so  that  the  fact  whether  the 
bonds  have  a  legitimate  existence,  can  be  easily  and  certainly 
ascertained.  If  a  purchaser  takes  them  without  inquiry,  and 
they  turn  out  to  be  illegal,  because  a  prerequisite  has  been 
omitted,  the  embarrassment  of  his  position  is  attributable  to 
his  own  carelessness ;  and  if  a  loss  is  to  be  incurred,  it  is 
more  just  that  it  should  fall  upon  him  rather  than  upon  the 
public,  who  is  in  no  default.  Under  such  circumstances,  the 
corporate  body  cannot  be  estopped  by  the  acts  or  declarations 
of  their  agents,  from  impeaching  instruments  put  in  circula- 
tion, without  authority,  by  such  agents.  I  think  all  the 
English,  and  most  of  the  American  authorities  can  be  put  on 
this  footing,  although  it  must  be  admitted  that  some  few  of 
the  latter  appear  to  have  been  decided  without  adverting  to 
the  distinction  that  exists  between  the  efficacy  of  acts 
done  by  the  special  agents  and  those  done  by  the  general 
agents  of  a  corporation ;  and  betsveen  the  operation  of  an 
agency,  the  extent  of  which  depends  on  facts  known  only  to 
the  corporate  body  and  its  servants,  and  that  of  an  agency 
whose  scope  is  marked  out  by  circumstances  which  are  pub- 
licly known.  In  the  present  case,  the  plaintiff  is  chargea 
ble  with  knowledge  of  the  fact  that  the  commissioners  had 
no  lawful  authority  to  put  these  bonds  in  the  market  unless 


JUNE  TERM,  1873.  225 


Bennett  v.  New  Jersey  E.  K.  and  T.  Co. 


by  force  of  a  vote  of  the  requisite  number  of  land  owners,  and 
"with  knowledge  as  to  the  existence  or  non-existence  of  such 
•consent.  The  consequence  is,  that  these  several  matters  are 
fundamental  requisites  to  the  plaintiff's  rights  of  action,  and 
must  appear  in  the  declaration.  On  this  ground,  the  defend- 
ant, on  this  issue,  is  entitled  to  judgment. 

It  is  advisable,  further,  to  remark,  that  an  apparent  defect 
exists  in  this  pleading,  which  is  r.ot  noticed  in  the  briefs. 
The  fourteenth  section  of  the  act  requires  these  bonds  to  be 
registered  in  the  county  clerk's  office,  and  that  the  words 
"  registered  in  the  county  clerk's  office,"  shall  be  printed  or 
written  across  the  face  of  each  bond,  attested  by  the  signature 
of  the  county  clerk,  when  so  registered,  "  and  it  is  then  de- 
clared that  no  bond  shall  be  valid  unless  so  Registered."  The 
act  appears  to  make  this  ceremony  as  essontial  to  the  legal 
existence  of  the  bond,  as  is  either  signing  or  sealing.  If  this 
is  so,  the  registration  is  a  fact  that  the  plaintiff  would  have  to 
prove  in  making  out  his  case,  and  consequently,  must  be 
shown  in  the  declaration. 

To  avoid  any  misapplication  of  this  case,  it  is  proper  to  add 
that  the  question  raised  in  the  briefs  of  counsel,  and  the  point 
as  to  the  necessity  of  an  averment  of  the  due  registration  of 
the  bonds,  are  the  only  matters  which  have  been  considered 
by  the  court. 

Cited  in  Hackensack  Water  Co.  v.  De  Kay,  9  Stew.  Eq.  548. 


WILLIAM  W.  BENNETT  v.  THE  NEW  JERSEY  EAILEOAD 
AND  TEANSPOETATION  COMPANY. 

1.  The  driver  of  a  horse  car  is  not  the  agent  of  a  passenger  so  as  to  ren- 
der such  passenger  chargeable  for  the  negligence  of  such  driver. 

2.  When  a  passenger  in  a  horse  car  is  injuied  by  the  carelessness  of  thf 
engineer  of  a  railroad  company  in  the  management  of  his  locomotive 
it  is  no  defence  to  show  contributory  negligence  in  the  driver  of  th€ 
horse  car. 


On  rule  to  show  cause,  &c. 


226         NEW  JERSEY  SUPRE.NrE  COURT. 

Bennett  v.  New  Jersey  R.  R.  and  T.  Co. 

Argued  at  February  Term,  1873,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  aud  Depue. 

For  plaintiff,  Leon  Abhett. 

For  defendants,  I.  W.  Scudder. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  cars  of  the  Jersey  City 
aud  Bergen  Railroad  Company,  in  crossing  the  track  of  the 
defendants,  the  New  Jersey  Railroad  and  Transportation 
Compauy,  were  struck  by  the  locomotive  of  the  latter  company. 
At  the  time  of  this  occurrence  the  plaintiff  was  a  passenger  in 
the  horse  car,  and  was  considerably  injured  by  the  collision. 
The  jury  found  the  servants  of  the  defendants  in  fault,  and 
gave  the  plaintiff  $5000  damages.  The  case  stands  before 
this  court  on  a  motion  for  a  new  trial,  founded  on  two 
grounds :  first,  for  a  misdirection  in  matter  of  law  at  the  cir- 
cuit ;  and,  second,  because  the  damages  are  excessive. 

The  question  of  law  then  presented  is  this  :  the  defendants 
at  the  trial,  contended  that  there  was  evidence  tending  to 
show  negligence  in  the  servants  of  the  horse  car  company,, 
which  negligence  was,  iu  part,  productive  of  the  accident,  and 
requested  the  judge  who  presided  to  charge  the  jury  that  if 
this  was  so,  the  plaintiff  was  not  entitled  to  recover.  The 
proposition  claimed  to  be  law  is,  that  when  a  passenger  enters 
a  public  conveyance,  he,  in  some  sort,  becomes  affected  by  the 
negligence  of  the  agents  of  those  in  charge  of  such  convey- 
ance, at  least  to  the  extent  of  debarring  him  from  suits  against 
third  parties  for  injuries  occasioned  by  the  joint  carelessness 
of  such  third  parties,  and  that  of  the  servants  having  the  con- 
trol of  the  vehicle  in  which  he  is  riding. 

This  position  has  for  its  siipport  the  case  of  Thorogood  v. 
Bryan,  8  Han.,  Gr.  &  Scott  116.  The  authority  is  in  every 
respect  in  point.  Tiie  suit  was  by  the  representatives  of  a 
person  who  had  been  run  over  and  killed.  The  deceased  was 
a  passenger  in  an  omnibus,  and  in  getting  out  had  been  rua 


JUNE  TERM,  1873.  227 

Bennett  v.  New  Jersey  K.  K.  and  T.  Co. 

over  by  the  omnibus  of  the  defendant.  The  judge  trying  the 
cause  charged  the  jury  that  if  any  want  of  care  on  the  part  of 
the  driver  of  the  omnibus  in  which  the  deceased  was  a  traveler, 
bad  been  conducive  to  the  injury,  their  verdict  must  be  for  the 
defendant.  This  ruling  was  approved  of  by  the  court  in  banc. 
This  case  stands,  I  think,  in  point  of  j)rinciple,  alone  in 
the  line  of  English  decisions,  and  the  grounds  upon  which  it 
rests  seem  to  me  inconsistent  with  familiar  rules.  The  reason 
given  for  the  judgment  is,  that  the  passenger  in  the  omnibus 
"  must  be  considered  as  identified  with  the  drivec  of  the  om- 
nibus in  which  he  voluntarily  "  becomes  a  passenger,  and  that 
the  negligence  of  the  driver  is  the  negligence  of  the  passenger. 
But  I  have  entirely  failed  to  perceive  how  it  is  that  the  pas- 
senger in  a  public  conveyance  becomes  identified,  in  any  legal 
sense,  with  the  driver  of  such  conveyance.  Such  identifica- 
tion could  result  only  in  one  way,  that  is,  by  considering  such 
driver  the  servant  of  the  passenger.  I  can  see  no  ground 
upon  which  such  a  relationship  is  to  be  founded.  In  a  prac- 
tical point  of  view,  it  certainly  does  not  exist.  The  passen- 
ger has  no  control  over  the  driver,  or  agent  in  charge  of  the 
vehicle.  And  it  is  this  right  to  control  the  conduct  of  the 
agent,  which  is  the  foundation  of  the  doctrine  that  the  master 
is  to  be  affected  by  the  acts  of  his  servant.  To  hold  that  the 
conductor  of  a  street  car,  or  of  a  railroad  train  is  the  agent  of 
the  numerous  passengers  who  may  chance  to  be  in  it,  would 
be  a  pure  fiction.  In  reality  the«re  is  no  such  agency,  and  if 
we  impute  it,  and  correctly  apply  legal  principles,  the  passen- 
ger, on  the  occurrence  of  an  accident  from  the  carelessness  of 
the  person  in  charge  of  the  vehicle  in  which  he  is  being  con- 
veyed, would  be  without  any  remedy.  It  is  obvious  in  a  suit 
against  the  proprietor  of  the  car  in  which  he  was  a  passenger, 
there  could  be  no  recovery  if  the  driver  or  conductor  of  such 
car  is  to  be  regarded  as  the  servant  of  the  passenger.  And  so 
on  the  same  ground  each  passenger  would  be  liable  to  every 
person  injured  by  the  carelessness  of  such  driver  or  conductor, 
because,  if  the  negligence  of  such  agent  is  to  be  attributed  to 


228  NEW  JERSEY  SUPREME  COURT. 

Bennett  v.  New  Jersey  R.  R.  and  T.  Co. 

the  passenger  for  one  purpose,  it  would  be  entirely  arbitrary 
to  say  that  he  is  not  to  be  affected  by  it  for  other  purposes. 
And  yet  it  is  to  be  presumed  that  no  court  would  go  this 
length  and  impose  on  each  person  being  carried  by  a  railroad 
train,  responsibility  for  the  misconduct  of  the  engineer  or  con- 
ductor of  such  train.  The  doctrine  of  the  English  case 
appears  to  convert  the  driver  of  the  omnibus  into  the  servant 
of  the  passenger,  for  the  single  purpose  of  preventing  the  pas- 
senger from  bringing  suit  against  a  third  party,  whose  negli- 
gence has  co-operated  with  that  of  the  driver  in  the  produc- 
tion of  the  injury.  I  am  compelled  to  dissent  to  such  a 
proposition.  Under  the  circumstances  in  question,  the  pas- 
senger is  a  perfectly  innocent  party,  having  no  control  over 
either  of  the  wrong  doers,  and  I  can  see  no  reason  why, 
according  to  the  usual  rule,  an  action  will  not  lie  in  his 
behalf  against  either  or  both  of  the  employers  of  such  wrong 
doers. 

Nor  do  I  think  that  in  the  English  courts  it  is  considered 
that  the  case  of  Thorogood  v.  Bryan,  has  settled  the  rule  of 
law. 

The  q«uestion  involved  in  it  was  decided  on  a  rule  to  show 
cause,  a  circumstance  which  was  regretted  by  one  of  the 
judges,  who  said  that  the  subject  was  an  important  one,  and 
ought  to  be  definitively  set  at  rest.  The  case  itself  was  dispara- 
gingly criticised  in  the  4th  edition  of  Smith's  Lead.  Cas.,  Vol. 
I,  p.  220 ;  and  this  criticism  has,  on  two  occasions  at  least,  been 
referred  to  by  the  English  courts,  with  marked  respect.  Tuff 
v.  Warinan,  2  C.  B.  {N.  S.)  750 ;  Waite  v.  North  Eastern 
R.  Co.,  El.,  B.  &  EL  728.  From  these  considerations  this 
case  does  not  bear  the  weight  which  a  deliberate  decision  of 
the  Court  of  the  King's  Bench  ordinarily  carries  with  it.  The 
doctrine  of  the  case  has,  however,  been  adopted  in  Pennsyl- 
vania. Lockhart  v.  Lichtenthaler,  46  Penn.  152;  but  has 
been  rej)udiated  in  New  York.  Chapman  v.  New  Haven  R. 
R.  Co.,  \^  N  Y.  341 ;  Webster  v.  Hudson  R.  R.  Co.,  38  lb. 
260. 

The  result  is  that  in  the  present  case  the  jury  was  rightly 


JUNE  TERM,  1873.  229 


Star  Brick  Co.  v.  Eidsdale  et  al. 


instructed  that  the  carelessness  of  the  driver  of  the  street  car 
in  which  the  plaintiff  was  a  passenger,  could  not  affect  the 
suit  or  bar  the  plaintiff's  right  to  recover  for  the  negligence 
of  the  defendant. 

Rule  discharged. 


THE  STAR  BRICK  COMPANY  v.  JOHN  W.  RIDSDALE  ET  AL. 

A  corporation,  being  the  plaintiff  in  the  suit,  need  not  prove  its  corpo- 
•  rate  existence  under  a  plea  of  the  general  issue,  or  other  plea  to  the 
merits. 


On  rule  to  show  cause  why  a  new  trial  should  not  be 
•granted. 

This  was  an  action  of  covenant,  the  plaintiff  being  a  cor- 
poration established  by  force  of  the  laws  of  New  York. 

Argued  at  February  Term,  1873,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Depue. 

For  plaintiff,  G.  Berry  and  A.  V.  Schench. 
For  defendants,  J.  H.  Stone  and  J.  P.  Jackson.. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice,  In  the  case  of  the  Bennington 
Iron  Company  v.  Rutherford,  reported  in  3  Harr.  158,  there 
is  a  somewhat  elaborate  discussion  of  the  question,  whether  a 
corporation,  being  the  plaintiff  in  a  cause,  must  prove  its 
■corporate  capacity  under  the  general  issue  or  other  plea  going 
to  the  merits  of  the  case.  But  although  considerable  research 
is  exhibited  and  a  number  of  the  authorities  examined  and 
•commented  on,  no  solution  of  the  point  is  announced,  so  that 
in  practice,  it  has  been  considered  unsettled  from  that  day  to 


230  NEW  JERSEY  SUPREME  COURT. 

Star  Brick  Co.  v.  Kidsdale  et  al. 

the  present  time.  It  is  now  for  the  first  time  in  this  state 
presented  directly  for  decision. 

The  question  has  been  variously  decided.  In  the  State  of 
New  York  the  practice  has  been  settled  by  a  series  of  cases 
to  the  effect  that  the  general  bar  involves  a  negation  of  the 
corporate  capacity  of  the  plaintiff.  In  other  states  the  same 
doctrine  has  been  adopted,  while  in  Massachusetts,  Maine, 
Vermont,  Connecticut,  and  by  the  federal  tribunals,  the  op- 
posite view  is  entertained. 

In  the  case  of  the  Bennington  Iron  Company  v.  Ruther- 
ford, it  appears  to  have  been  thought  that  in  England  a  plea 
of  the  general  issue  called  for  proof  of  the  existence  of  the 
corporate  plaintiff.  But  I  do  not  find  that  the  point  has 
there  been  specially  adjudged.  In  the  case  just  cited,  but 
two  authorities  are  referred  to,  and  neither  of  thems  seem  to 
me  in  point.  The  first  is  that  of  the  Company  of  Carpenters 
V.  Wayward,  1  Doug.  374,  it  being  a  suit  against  a  carpenter 
for  a  breach  of  a  custom,  and  one  of  the  grounds  on  which  a 
non-suit  was  asked,  was  that  the  plaintiffs  had  not  proved 
the  existence  of  such  a  company  as  that  described  on  the 
record.  What  the  plea  was  is  not  shown,  and  it  is  obvious 
that  the  nature  of  the  suit  was  such,  being  the  alleged  viola- 
tion of  a  custom  forming  part  of  the  chartered  rights  of  the 
plaintiff,  as  to  necessitate  proof  of  the  existence  and  extent  of 
such  rigiits.  The  decision  seems  to  have,  with  respect  to  the 
present  inquiry,  no  significance.  Nor  has  the  second  case 
any  closer  application.  It  is  that  of  the  Mayor  of  Lynne 
Regis  v.  Payn,  10  Co.  120.  The  action  was  on  a  bond,  and 
the  plea  was  non  est  factum,  and  there  was  a  special  verdict 
showing  that  the  name  of  the  plaintiff,  set  forth  in  the  bond 
as  the  obligee,  varied  from  the  name  under  which  the  com- 
pany was  incorporated.  It  is  not  shown  in  the  report  that 
the  plaintiff,  in  support  of  its  case,  made  proof  of  its  incor- 
poration ;  the  fact  may  have  been  introduced  by  the  defend- 
ant, but  at  all  events,  the  only  question  discussed  and  passed 
upon,  was  with  regard  to  the  alleged  variance  between  the 
name  in  the  bond  and  the  corporate  name  of  the  plaintiff. 


JUNE  TERM,  1873.  231 

Star  Brick  Co.  v.  Kidsdale  et  al. 

But  while  these  particular  cases  do  not  throw  much,  if  any, 
light  upon  the  point  in  question,  there  are  evident  traces 
in  the  English  books  of  a  practice  which  leads  to  the  proof, 
under  the  conditions  specified,  of  the  existence  of  the  corpora- 
tion. It  is  probable  that  this  course  of  proceeding  is  the 
result  of  dicta  which  here  and  there  appear  in  the  reports,  as 
well  as  in  one  of  the  text  books.  But  whatever  may  be  the 
occasion  of  this  practice,  it  is  certain  that  the  plea  of  nul  tiel 
corporation  was  from  very  ancient  times  one  of  the  recognized 
forms  of  pleading.  The  precedent  is  as  old  as  the  year  books;. 
Mr.  Sergeant  Williams,  in  his  note  to  the  case  o^  Mellor  v. 
Spateman,  1  Saund.  R.  340,  Says  :  "  The  defendant  can  only 
plead  md  tiel  corporation,  in  bar  to  an  action  by  a  corpora- 
tion." If  this  be  so,  it  would  seem  to  follow  that  the  gene- 
ral issue  will  not  put  the  corporate  existence  of  the  plaintiff 
in  question,  because,  being  possessed  of  this  effect,  the  plea  of 
nul  tiel  corporation  becomes  useless  and  bad  in  theory,  on  the 
ground  that, it  amounts  to  the  general  issue. 

Indeed,  in  New  York  it  has  been  held,  consistently  with 
the  principle  above  stated,  adopt'ed  by  the  courts  of  that  state, 
that  nul  tiel  corporation  was  not  good,  as  it  was  equivalent  to 
the  general  issue.  Wood  v.  Jefferson  Co.  Bank,  9  Cowen  194^ 
The  presence  of  such  a  plea,  therefore,  in  the  common  law, 
would  seepi  to  negative  the  claim  which  is  set  up  in  favor  of 
;he  common  bar. 

But  whatever  may  be  the  practice  at  present  prevailing  in 
the  English  courts,  or  in  the  courts  of  some  of  the  American 
states,  I  think  it  is  manifest  there  is  nothing  to  prevent  this- 
court  from  adopting  that  course  of  proceeding  which  is  most 
consistent  with  ordinary  principles,  and  most  conducive  to 
general  convenience. 

The  familiar  rule  of  pleading  is  that  a  defendant  by  plead- 
ing to  the  merits,  admits  the  capacity  of  the  plaintiff  to  sue. 
This  is  the  principle  applicable  to  actions  between  natural 
persons,  and  no  reason  is  apparent  why  it  should  not  be  ex- 
tended to  suits  brought  by  corporations.  In  fact,  with  respect 
to  this  latter  class  of  persons  the  rule  is  of  most  value,  as  in. 


232  NEW  JERSEY  SUPREME  COURT. 

Star  Brick  Co.  v.  Ridsdale  et  al. 

many  instances  it  is  sheer  vexation  to  be  required  to  show, 
with  technical  exactness,  a  corporate  existence.  It  is  seldom 
that  the  existence  of  the  corporate  authority  is  one  of  the 
■questions  in  controversy,  and  to  require  it  to  be  shown  on 
every  occasion  is  oppressive  in  the  extrem'e. 

When  an  incorporated  bank  sues  upon  a  promissory  note,  if 
a  plea  of  nul  tiel  corporation  were  interposed,  it  is  probable 
that  such  plea,  under  ordinary  circumstances,  would  be  or- 
dered to  be  struck  out  on  the  ground  of  a  manifest  intention 
to -embarrass  the  suit.  What  propriety,  then,  is  there  in  com- 
pelling such  plaintifif  to  produce,  in  an  issue  raised  on  the 
merits,  its  charter  coupled  with  evidence  of  an  organization 
under  it  ?  The  admission  of  such  a  rule  is  theoretically 
wrong,  and  practically  mischievous.  It  is  clearly  the  prefer- 
able course  to  require  a  party  who  desires  to  put  in  contro- 
versy the  fact  of  the  due  incorporation  of  the  plaintiff  in  a 
suit,  to  do  so  by  the  plea  specially  fitted  to  that  purpose,  thus 
avoiding  the  inconvenience  arising  out  of  the  necessity  of 
such  proof  in  the  generality  of  cases,  and  when  the  status  of 
the  party  suing  is  not  in  any  issue  in  dispute.  The  result  is 
that  under  the  plea  in  this  case,  I  do  not  think  it  was  incum- 
bent for  the  plaintifif  to  show  the  fact  of  its  incorporation. 

Nor  do  I  think  that  such  necessity  existed  for  the  purpose 
of  eviiKJing  its  capacity  to  enter  into  the  contract  embraced*  in 
the  suit.  It  is  true  that  a  corporation  is  a  creature  of  enu- 
merated powers,  and  that,  consequently,  its  ability  to  do  any 
particular  act  must,  when  the  validity  of  such  act  is  insisted 
on,  bd  made  to  appear. 

But  I  think  the  true  doctrine  is  that  as  against  a  party 
dealing  with  a  corporation,  it  is  primarily  to  be  assumed  that 
the  act  done  in  such  business  by  the  corporation  was  within  its 
competency.  Under  such  circumstances,  a  prima  facie  case  is 
made  in  favor  of  the  legality  of  the  corporate  act,  and  if  the 
defendant  alleges  that  the  act  was  ultra  vires,  the  burthen  of 
proving  it  is  upon  him. 

This  view  of  the  law  dispenses  with  the  necessity  of  con- 
sidering the  evidence  which  was  oflfered  at  the  trial,  touching 


J'UNE  TERM,  1873.  235 

State  V.  Ivins. 

the  fact  of  the  incorporation  of  the  plaintiff.  With  respect 
to  the  second  exception  taken  to  the  trial,  that  the  judge  re- 
fused to  acharge  that  the  alleged  offer  of  the  defendants  to 
hire  their  works  to  the  plaintiff,  in  accordance  with  one  of 
the  terms  of  their  article  of  agreement,  exempted  the  defend- 
ants from  all  liability  for  antecedent  breaches,  it  would  be 
sufficient  to  say  that  there  is  nothing  in  the  case  to  show  that 
the  judge  refused  so  to  charge,  or  to  show  what  his  charge  in- 
this  particular  really  was.  But,  independently  of  this  con- 
sideration, the  matter  thus  set  up  is  not  within  any  of  the 
issues  formed  in  the  pleadings.  Nor  is  it  likely,  if  the  ques- 
tion had  been  properly  presented,  that  the  construction  con- 
tended for  would  have  been  concurred  in,  because,  although 
wit-Iiin,  perhaps,  the  literal  meaning  of  the  words,  it  i& 
entirely  inconsistent  with  the  evident  intention  and  spirit  of 
the  agreement. 

The  last  objection  relates  to  the  amount  of  the  verdict. 
The  evidence  on  this  subject  is  loose  and  not  satisfactory,  but 
there  is  nothing  in  it  to  warrant  the  court  in  interfering  with 
the  result  arrived  at  by  the  jury. 

The  rule  to  show  cause  must  be  discharged.. 

Cited  in  Butterfield  v.  Third  Av.  Savings  Bank,  10  C.  E.  Or.  533. 


THE  STATE  v.  IVINS. 


1.  On  the  trial  of  an  indictment  for  an  attempt  to  ravish,  a  complaint 
made  soon  after  the  assault,  by  the  woman  assaulted,  is  admissible  in 
evidence. 

2.  The  particulars  of  the  transaction,  as  detailed  by  the  prosecutrix,  are 
not  legal  evidence  on  such  trial. 


On  case  certified  by  the  Court  of  Quarter  Sessions  of  the 
county  of  Monmouth. 

Argued  at  February  Term,  1873,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Depue. 


234  NEIT'JERSEY  SUPREME  COURT. 


State  V.  Ivins. 


For  defendant,  Wm.  H.  Vredenburgh. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  defendant  was  tried  for 
an  attera|)t  to  ravish.  The  fact  that  the  prosecutrix  made 
complaint  immediately  after  the  occurrence,  aad  her  narra- 
tion of  the  particulars  of  the  occurrence  were  proved  on  the 
part  of  the  state,  and  such  testimony  was,  against  the  objec- 
tion of  the  counsel  of  the  defendant,  admitted  in  evidence. 

The  certified  ease  presents  two  questions  for  solution : 
first,  whether  on  the  trial  of  an  indictment  for  an  attempt  to 
ravish,  a  complaint  made  soon  after  the  assault,  by  the 
woman  assaulted,  is  admissible;  and,  second,  if  such  com- 
.plainf  be  admissible,  whether  the  particulars  of  the  transac- 
tion, as  detailed  by  the  prosecutrix,  are  legal  evidence  on 
such  trial. 

With  respect  to  the  first  point,  the  rule  that  in  trials  for 
rape,  the  fact  that  the  woman  alleged  to  have  been  violated, 
made  complaint  soon  after  the  occurrence,  is  admissible  as 
evidence  on  the  part  of  the  prosecution,  is  entirely  set- 
tled, and  is  very  familiar  in  practice.  To  this  extent,  hear- 
say evidence  becomes  admissible,  and  this  departure  from  the 
ordinary  rule  seems  justifiable  on  the  ground,  that  in  the 
natural  course  of  things,  if  a  woman  has  thus  been  foully 
wronged,  she  will  almost  necessarily  disclose  the  fact.  It  is 
the  peculiar  nature  of  the  offence  that  has  introduced  this 
exceptive  practice.  If  the  offeace  was  an  assault  and  bat- 
tery, no  matter  how  grievous  in  its  character,  there  could  be 
no  pretence  that  the  sayings  of  the  prosecutrix  out  of  court 
and  out  of  the  presence  of  the  defendant,  could  be  introduced 
as  a  part  of  the  proof  in  behalf  of  the  prosecution.  And  it 
is  now  said,  that  the  exception  which  legalizes  the  introduc- 
tion of  this  hearsay  in  case  of  a  charge  of  rape,  will  be  con- 
fined to  the  narrowest  limits,  and  not  extended  to  trials  for 
attempts  to  commit  that  crime.  There  does  not  appear  to  be 
much  authority  upon  the  subject,  but  the  little  that  there  is, 
favors  the  admissibility  of  the  evidence.  Brazier's  case,  re- 
ported in  1  East  F.  C.  443,  tends  evidently  to  this  result. 


JUNE  TERM,  1873.  235 


Hall  V.  Gildersleeve. 


lud  the  point  was  ruled  in  the  same  way  by  Holroyd,  J.,  in 
Rex  V.  Clarke,  2  Starkie  E.  241. 

There  seems  to  be  no  very  cogent  reason  why  these  intima- 
tions should  not  be  followed.  Under  such  circumstances,  the 
main  thing  is  to  have  the  rule  settled.  The  rule  with  respect 
to  the  admissibility  of  the  complaint  of  the  prosecutrix,  must 
be  held  to  be  the  same  where  the  charge  is  an  attempt  to 
ravish,  as  it  is  when  the  crime  of  rape  itself  is  charged. 

But  on  the  second  ground  of  the  objection,  the  defence 
must  prevail.  The  particulars  of  the  prosecutrix's  complaint 
were  clearly  inadmissible.  It  is  every  day's  practice  to  ex- 
<3iude  such  narrations  in  trials  for  rape.  There  is  no  doubt 
upon  the  subject,  and  it  is  not  necessary  to  pursue  it.  The 
sessions  should  be  advised,  on  this  account,  to  set  aside  the 
verdict. 


HALL  V.  GILDERSLEEVE. 


A  stolen  horse,  left  by  the  thief  tied  to  a  post  in  a  public  road,  is  not 
an  estray  within  the  purview  of  the  New  Jersey  statute. 
Nor  will  sufch  horse  be  brought  under  the  statute,  if  the  person  find- 
ing him  remoTe  him  and  tie  him  in  a  private  stable. 


Error  to  Circuit  Court  of  the  county  of  Somerset. 

The  suit  was  in  replevin,  and  the  following  is  the  case  as 
certified : 

The  horse  in  controversy  being  the  property  of  Hall,  was 
stolen  from  his  stable  on  the  night  of  December  27th,  1868, 
and  taken  by  the  thief  to  South  Orange,  in  the  county  of 
Essex,  and  there  left  tied  to  a  post  in  the  public  highway,  on 
the  lands  of  the  Methodist  Church.  Hall  made  diligent 
effort  to  recover  the  horse,  and  to  apprehend  the  thief.  The 
horse  was  found  on  the  morning  of  December  28th,  1868, 


236  NEW  JERSEY  SUPREME  COURT. 

Hall  V.  Gildersleeve. 

by  Ralph  Gildersleeve,  tied  as  above  stated ;  and  ou  the 
evening  of  that  day,  to  wit,  at  about  four  and  a  half  o'clock, 
the  said  horse  having  stood  at  the  fence  aforesaid,  from  be- 
tween seven  and  a  half  o'clock  and  eight  o'clock  a.  m.,  of  the 
same  day,  till  about  four  and  a  half  o'clock  p.  m.,  was  untied 
and  taken  to  the  stable  of  John  Gildersleeve,  by  Ralph,  his 
son,  and  stabled  there ;  but  it  did  not  appear  that  the  horse 
was  so  taken  and  stabled  by  Ralph  Gildersleeve,  by  tlie  direc- 
tion or  with  the  knowledge  of  John  Gildei-sleeve,  but  John, 
did  know  that  the  horse  stood  tied  in  the  public  highway,  on 
the  Methodist  Church  property;  nor  did  it  appear  when  John 
first  knew  the  horse  had  been  removed  to  his  stable.  The 
horse  was  afterwards  reported  to  the  town  clerk,  who  made 
the  entries  required  by  law,  and  the  horse  was  afterwards  sold 
as  an  estray,  by  the  overseer  of  the  poor,  pursuant  to  the 
statute,  and  purchased  by  the  plaintiflf,  who  brought  her  to 
the  county  of  Somerset.  The  horse  escaped  from  the  enclo- 
sure of  the  plaintiff  on  August  24th,  1869,  and  came  unat- 
tended to  the  premises  of  Hall. 

It  did  not  appear  whether  said  horse,  while  standing  as 
aforesaid,  on  said  church  property,  was  fed  or  not. 

The  finding  of  the  court  is  to  be  regarded  as  a  special  ver- 
dict, and  it  is  agreed  that  either  party  shall  be  at  liberty  to 
bring  a  writ  of  error. 

Argued  at  February  Term,  1873,  before  Beasley,  Chief 
Justice,  and  justices  Bedle,  Dalrimple  and  Dbpue. 

For  plaintiff  in  error,  A.  V.  Van  Fleet, 

For  defendant,  H.  31.  Gaston. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  A  stolen  horse  was  tied  by 
the  thief  to  a  post  in  a  highway,  and  there  abandoned.  A 
person  finding  it  in  that  situation  took  it  to  the  stable  of  his 
father,  the  latter  being  aware  that  it  had  stood  tied  in  the 
public  highway,  but  it  was  not  shown  that  he  consented  to- 


JUNE  TERM,  1873.  237 

Hall  V.  Gildersleeve. 

or  knew  of  its  being  brought  to  his  stable.  The  father  after- 
wards had  the  animal  treated  as  an  estray,  and  it  was  sold  as 
such  under  the  statute.  The  present  controversy  arises  be- 
tween the  original  owner  and  the  purchaser  at  this  sale. 

In  my  estimation,  the  sale  in  question  cannot  be  justified. 
The  horse,  while  tied  to  the  post  in  the  road,  was  not  an 
estray,  within  the  purview  of  the  statute.  A  stolen  horse 
abandoned  by  the  thief  in  his  flight,  is  a  waif;  but  such  waif 
will  become  an  estray  so  as  to  be  the  subject  of  sale,  if  it  be 
found  straying  upon  improved  land.  But  no  one  but  the 
owner  of  such  land  can  make  the  statutory  seizure  and  sale, 
and  the  consequence  is,  that  even  if  the  horse  in  question  is 
to  be  regarded,  while  in  the  public  road,  as  an  estray,  the 
present  sale  will  not  be  helped,  because  the  highway  was  not 
improved  land  within  the  meaning  of  the  act,  nor  was  the 
person  procuring  such  sale  the  owner  of  the  land  constituting 
the  highway. 

But  the  horse  was  taken  up  in  the  road  and  put  in  a  stable 
near  by,  and  it  is  contended  that  the  owner  of  such  stable  had 
the  right  to  treat  such  animal  as  an  estray.  But  it  does  not 
seem  to  me  that  this  is  even  plausible.  If  an  animal  be 
brought  on  to  the  property  of  another  without  his  knowledge 
and  against  his  will,  the  person  making  such  invasion  will, 
under  ordinary  circumstances,  be  guilty  of  a  trespass,  and  can 
be  punished  acqordingly ;  but  I  think  the  suggestion  is  novel 
that  the  animal  thus  intruded  can  be  seized  and  held  as  an 
estray.  In  tiie  present  case,  the  son  of  the  owner  of  the 
stable  found  this  horse  in  the  highway  and  took  it  into  his 
possession  ;  this  act  made  him  the  owner  of  the  horse  as 
against  everybody  but  the  true  owner.  As  between  himself  and 
his  father  he  was  in  law  the  owner  of  the  animal  in  question^ 
for  there  can  be  no  doubt  that  Mr.  Dane,  in  his  Abridgment 
of  American  Law,  correctly  states  the  legal  rule  in  saying,  that 
where  there  are  no  controlling  provisions  by  statute,  estrays 
aad  waifs  belong  to  the  finder  in  the  absence  of  the  owner. 
Chap.  76,  §  21.  It  is  to  be  remembered  that  a  person  who 
finds   property,    either   animate   or   inanimate,   and  takes  it 

Vol.  VII.  15 


238  NEW  JERSEY  SUPREME  COURT. 

Hall  V.  GiUlersleeve. 

into  possession,  becomes  responsible  to  its  owner  for  its  safety. 
He  is  bound  to  the  exercise  of  ordinary  care  with  resjject  to 
it,  and  to  yield  it  up  when  demanded.  In  eases  of  or<linary 
finding,  a  lien,  even  for  expenses,  cannot  be  claimed.  This  is 
the  doctrine  of  Nicholson  v.  Chapman,  2  H.  Bl.  R.  254. 

It  appeared  in  that  case,  that  a  quantity  of  lumber  l}ing 
along  the  banks  of  a  stream  had  become  accidentally  loosened 
and  carried  away  by  the  tide,  and  had  been  found  and  taken 
up  by  the  defendant.  The  decision  was,  that  the  finder 
was  bound  to  deliver  the  lumber  up  to  the  owner  on  demand, 
though  nothing  was  tendered  by  way  of  compensaticjn  for 
Ills  trouble  and  expense.  The  case  of  the  taking  up  of  a 
straying  animal,  is  put  by  the  court  as  an  illustration  of  the 
usual  liability  of  the  finder  of  lost  property  to  the  owner. 
In  referring  to  the  legal  effect  of  the  facts  then  under  con- 
sideration, the  official  opinion  says  :  "  It  is  the  same  as  if  a 
horse  had  strayed  and  was  not  taken  as  an  estray  by  the  lord 
under  his  manorial  rights,  but  was  taken  up  by  some  good 
uatured  man,  and  taken  care  of  by  him  till,  at  some  trouble, 
and  perhaps  at  some  expense,  he  had  found  out  the  owner. 
So  it  would  be  in  ev^ery  other  case  of  finding  that  can  be 
stated." 

It  seems  to  me  evident,  then,  that  the  son  must,  in  this 
case,  be  treated  as  the  finder  of  this  horse.  A  special  prop- 
erty vested  in  him  as  finder ;  he  could  have  maintained 
trover  or  replevin,  if  the  animal  had  been  taken  from  him 
against  any  person  so  taking  it,  except  the  owner.  The  vol- 
untary possession  of  it  at  once  made  his  responsibility  to 
such  owner  complete  and  absolute.  I  cannot  see  tlie  least 
uncertainty  as  to  his  rights  or  responsibility.  Nor  can  I 
have  any  more  doubt,  that  the  title  of  this  person  did  not 
become  divested  by  his  tying  the  horse  in  the  stable  of  his 
father.  If  such  divesture  followed  as  a  legal  consequence  of 
such  act,  then  the  finder  of  a  lost  article  can  never  safely 
take  it  upon  the  property  of  another  person.  Suppose  the 
finder  of  this  horse  had  retained  it  in  his  possession  for  a 
week  or  a  month,  and  had  then  put  it  in  the  stable  of  his 


JUNE  TERM,  1873.  239'. 

Hall  V.  Gildersleeve. 

father,  or  iu  that  of  a  stranger,  could  the  animal  have  been 
sold  as  an  estray  ?  But  lapse  of  time  does  not  strengthen  the 
rights  of  the  finder  of  lost  property,  and  I  can  see  no  other 
ground  on  which  the  defence  can  stand  in  this  case,  except  on 
the  general  p^'oposition,  that  if  a  person  having  a  general  or 
special  property  in  a  horse,  shall  put  it  in  the  stable  of 
another  without  permission,  the  owner  of  such  stable  may 
have  it  sold  under  the  statute  as  an  estray. 

Such  an  application  of  the  statute  as  this,  appears  to  me 
altogether  unreasonable.  This  act  was  originally  passed  in 
1797,  and  at  that  time  there  being  extensive  tracts  of  uncul- 
tivated land,  upon  which  cattle  were  turned,  they  would  often 
stray  away,  on  to  the  cultivated  lauds  of  distant  land  owners. 
During  the  inclement  season,  between  the  1st  of  November 
and  the  1st  of  April,  such  land  owners  Were  often  obliged, 
from  motives  of  humanity,  to  take  care  of  such  estrays,  and 
it  was  to  lighten  this  burthen  that  this  statutory  provision 
was  made.  The  remedy  thus  appointed  partakes  somewhat 
of  the  nature  of  the  common  law  proceeding  in  case  of  a  dis- 
tress of  animals  damage  feasant.  Its  object  was  to  give  to 
the  owner  of  the  invaded  lands  a  lien  for  his  expense  and 
trouble  upon  the  trespassing  cattle,  and  the  power  to  enforce 
such  lien  by  sale.  It  is  a  summary  remedy,  and  is  not  to  be 
extended  to  instances  not  clearly  within  the  statutory  plan. 
I  think  it  would  be  an  entire  misapplication  to  extend  it  to 
the  case  of  an  ^nimal  left  voluntarily  upon  property  by  a 
person  in  the  lawful  possession  of  such  animal.  The  statute 
was  plainly  not  intended  as  a  remedy  for  such  a  wrong.  For 
such  a  transgression  of  the  rights  of  the  property  holder  the 
law,  by  its  other  methods,  affords  ample  redress.  Nor  do  I 
perceive  any  force  in  the  suggestion  that  unless  the  operation 
of  this  statute  is  widely  extended,  that  a  person  who  finds  an 
animal  whose  owner  is  unknown  is  at  great  disadvantage, 
and  has  no  adequate  mode  of  redress.  It  is  asked,  under 
such  circumstances,  what  is  the  owner  of  the  stable  to  do? 
The  answer  is,  he  has  the  same  remedies  that  he  has  if  the 
animal  is  obtruded  upon  him  at  any  time  between  April  and 


240  NEW  JERSEY  SUPREME  COURT. 

Hall  V.  Gildersleeve. 

November.  Tlie  act  relating  to  estrays  applies  only  to  the 
intorira  between  the  1st  of  November  and  the  1st  of  April. 
It  certainly  was  not  intended  to  be  a  relief  in  the  case  of  an 
animal  not  being  an  estray,  that  might  be  unlawfully  left 
upon  property.  The  horse,  in  the  present  case,  was  not  liable 
to  be  treated  as  an  estray,  and  the  sale  was,  consequently,  in- 
valid. 

This  result,  I  think,  satisfies  the  demands  of  justice  in  this 
case.  The  plaintiff  in  error  was  the  owner  of  this  property, 
which  was  taken  out  of  his  possession  feloniously  and  with- 
out fault  on  his  part.  The  defendant,  when  he  purchased  at 
the  sale  by  the  overseer  of  the  poor,  was  bound  to  know  that 
the  title  of  the  unknown  owner  could  not  be  vacated,  except 
under  a  legal  seizure  and  formal  sale.  This  was  the  risk  he 
ran,  and  such  risk  is  always  represented  in  the  price  which 
the  thing  sold  brings.  The  conduct  of  the  parties  who- 
brought  about  the  sale  is  not  entitled  to  favorable  considera- 
tion. The  treating  this  horse  as  an  estray  was  a  subtle  con- 
trivance on  the  part  of  the  father  and  son,  that  would  stand 
only  if  its  foundation  had  been  found  legally  impregnable. 

This  not  being  the  case,  the  judgment  must  be  reversed. 

This  disposes  of  the  case,  and  it  is  not  necessary  to  con- 
sider whether,  if  a  different  view  had  been  taken  of  the  legal 
principles  involved,  such  result  could  have  benefited  the  de- 
fendant in  error,  on  the  ground  that  the  facts  as  stated  do  not 
make  up  a  case  in  his  favor.  The  form  of  the  case  as  stated 
appears  very  defective,  but  it  is  not  deemed  necessary  to  pass, 
upon  its  sufficiency. 

Justices  Bedle  and  Deptje  concurred. 

Dalrimple,  J.,  dissenting.  The  horse,  the  title  to  which> 
is  in  question  in  this  suit,  was  found,  the  owner  being  un- 
known, by  one  John  Gildersleeve,  on  his  improved  land, 
between  the  1st  day  of  November  and  the  1st  day  of  April. 
He  duly  reported  him  as  an  estray.  The  entries  required  by 
law  were  made,  and  the  horse  afterwards  sold  as  an  estray,. 


JUNE  TERM,  1873.  241 

Hall  V.  Gildersleeve. 

according  to  the  statute,  and  purchased  by  the  defendant  in 
error.  He  escaped  from  the  defendant,  and  strayed  to  the 
premises  of  plaintiff  in  error,  and  was  by  him  taken  posses- 
sion of.  The  defendant  brought  an  action  of  replevin,  and 
recovered.  The  legal  definition  of  an  estray  in  this  state, 
is,  neat  cattle,  horses  or  sheep  found  upon  improved  lands, 
between  the  1st  day  of  November  and  the  1st  day  of  April, 
whose  owner  is  unknown.  Nix.  Dig.,  p.  12,  §  8;  IX  Peters- 
dorf's  Ahr.  131 ;  1  Bouvier's  Law  Die.  527;  1  Bla.  297;  2 
Kent  359;  Walter  v.  Gluts,  29  loioa  437.  In  my  opinion, 
the  horse  when  found  was,  according  to  this  definition,  clearly 
an  estray.  Nor  do  I  think  the  case  is  altered  by  the  fact 
that  he  was  stolen  from  the  plaintiff  before  found.  This 
precise  point  was  made  in  the  case  of  Patterson  v.  MoVay, 
^  Watts  482,  in  which  the  court  says:  "The  proceeding 
against  a  stray  is  in  rem,  and  not  against  the  title  of  any 
particular  owner.  Its  object  is  not  to  inflict  a  penalty  for 
letting  the  animal  go  at  large,  but  to  compensate  the  injury 
done  by  it,  and  secure  the  residue  of  the  value  to  the  owner 
of  it.  What  matters  it,  then,  that  the  animal  was  taken  out 
of  his  possession  without  his  default,  when  default  is  not  the 
foundation  of  the  proceeding?  It  is,  in  some  respects,  a 
charitable  one,  for  had  not  the  animal  been  secured  and 
taken  care  of,  it  might  have  perished,  or  wandered  away 
beyond  the  reach  of  recovery.  The  costs  and  charges  must 
be  paid,  in  any  event,  for  the  officers  are  not  to  be  affected 
by  considerations  of  theft;  and  how  can  these  be  raised 
except  by  a  sale,  or  how  can  there  be  a  sale  if  purchasers 
cannot  bid  securely."  Nor  do  I  think  it  can  properly  be 
held  that  the  person  who  removed  the  horse  from  the  church 
lot,  where  he  found  him  tied  and  apparently  abandoned,  to 
the  stable  of  John  Gildersleeve,  was  in  any  sense  the  owner. 
The  case  does  not  show  that  he  ever  claimed  any  interest  in 
the  horse  as  finder,  or  otherwise,  or  that  he  ever,  for  a 
moment,  assumed,  or  claimed  the  right  to  assume  control  of 
him.  It  is  quite  evident  that  he  did  not  take  or  remove  the 
tiorse,  claiming  title  to  him  as  finder.     On  the  contrary,  it  is 


242  NEW  JERSEY  SUPREME  COURT. 

Hall  V.  Gildersleeve. 

quite  clear  that  the  liorse  was  takem  and  removed  from  mo- 
tives of  humanity,  that  he  migiit  be  fed  and  cared  for,  not 
by  the  finder,  but  by  the  owner  of  the  stable  into  which  he 
was  put.  One  reason  of  an  eslray  is  said  to  be,  that  the  cattle 
called  animalia  vagrantia  may  not  perish.  Viner^s  Ahr.,  Vol. 
X,  p.  487.  Moreover,  it  has  been  held,  that  "  if  a  man  takes 
beasts  as  estray,  and  keeps  them  for  three  quarters  of  a  year, 
and  after  they  estray  from  him  and  another  gets  them,  the 
first  lord  who  keeps  them  for  three  quarters  cannot  retake 
them,  because  he  has  no  property  in  them  till  he  has  kept 
them  the  year  and  day,  and  proclamation  passed ;  quod  nota 
bene,  for  the  possession  of  the  second  lord  is  good  against 
him  who  has  no  property."  lb.  489.  I  do  not  see  why  the 
same  principle  should  not  apply  to  this  case,  if  we  hold  that 
the  person  who  removed  the  horse  and  left  him  on  the  prem- 
ises mentioned,  once  had  title  to  him  as  finder.  That  title 
could  not  last  beyond  the  time  when  the  possession  was  vol- 
untarily abandoned,  or  surrendered  to  another.  It  may 
be  further  observed,  that  it  does  not  appear  by  the  case,  that 
John  Gildersleeve  knew  when  or  by  whom  the  horse  was 
brought  upon  his  premises.  The  finder,  on  kis  own  motion, 
removed  the  horse  to  Gildersleeve's  premises,  without,  so  far 
as  appears,  his  knowledge,  consent,  or  direction.  I  think  it 
may  properly  be  asked  what,  under  these  circumstances,  was 
to  be  done  with  the  animal,  if  he  was  not  to  be  treated  as 
an  estray?  How  was  he  to  be  disposed  of?  I  think  if  the 
question  were  doubtful,  it  ought,  for  the  security  of  the 
owner,  to  be  resolved  in  favor  of  .the  proceedings  under  the 
statute  concerning  estrays,  because  thereby  public  record  is 
required  to  be  made  that  the  animal  has  been  taken  as  an 
estray,  and  after  a  certain  time,  if  not  reclaimed  by  the 
owner,  it  must  be  sold  at  public  auction,  and  from  the  pro- 
ceeds of  sale,  the  legal  costs  and  expenses  are  to  be  first  paid, 
and  the  surplus  paid  over  to  the  owner.  The  other  view,  it 
seems  to  me,  is  contrary  to  the  policy  of  the  statute,  and 
would  oftentimes  enable  dishonest  and  irresponsible  persons 
to  conceal  and  convert  to  their  own  use  stray  cattle,  under 


JUNE  TERM,  1873.  243 

Bramhall  v.  Atlantic  National  Bank. 

circumstances  which  would  deprive    the   real  owner    of   all 
adequate  remedy. 

I  have  not  been  able  to  see,  in  the  case  sent  up,  any  evi- 
dence of  bad  faith  or  dishonesty  on  the  part  of  the  defendant 
in  error,  or  of  the  persons  who  took  and  disposed  of  the 
horse  as  an  estray.  In  my  opinion  the  judgment  below 
should  be  affirmed,  with  costs. 

Judgment  of  the  Circuit  Court  reversed. 


BRAMHALL  v.  ATLANTIC  NATIONAL   BANK. 

1.  Under  the  New  York  statute  {Laws,  1850,  ch.  172,  p.  334,)  and  deci- 
sions thereon,  a  corporation,  its  endorsers,  guarantors  or  sureties  can- 
not avoid  its  contract  on  the  ground  of  usury,  whether  by  defence  or 
affirmative  action. 

2.  The  object  of  that  statute  is  to  protect  the  special  contracts  of  a  cor- 
poration for  a  higher  rate  than  seven  per  cent.,  and  on  all  contracts 
not  providing  for  a  higher  rate,  interest  is  collected  against  a  corpora- 
tion at  seven  per  cent,  under  the  general  act.  {Sd  Vol.  Rev.  Stat.,  N, 
Y.,  p.  72.) 

3.  The  act  of  1850  in  that  state,  does  not  disturb  the  general  rate  of  seven 
per  cent.,  but  in  effect  repeals  all  penalties  against  a  higher  rate  as  to 
corporations,  rnd  leaves  parties  at  liberty  to  make  a  special  contract 
with  a  corporation  without  limitation. 

4.  Under  the  act  of  congress  {Acts,  1864,  p.  108,  ^  30,)  national  banks 
may  take  any  rate  fixed  by  the  laws  of  the  state  or  territory  where 
created,  and  in  case  no  rate  is  fixed,  the  bank  may  charge  any  rate 
not  exceeding  seven  per  cent.  Had  the  rate  in  New  York  been  ten 
per  cent.,  the  bank  could  have  taken  it,  and  so  when  the  rate  is  seven 
per  cent,  the  bank  takes  it,  not  because  that  is  the  rate  by  act  of  con- 
gress, but  because  it  is  so  by  the  New  York  statute. 

6.  The  penal  clause  in  the  30th  section  of  said  act  of  congress,  viz. : 
"And  the  knowingly  taking,  receiving,  reserving  or  charging  a  rate 
of  interest  greater  than  aforesaid,  shall  be  held  and  adjudged  a  for- 
feiture of  the  entire  interest  which  the  note,  bill  or  other  evidence  of 
debt  carries  with  it,  or  which  has  been  agreed  to  be  paid  thereon, 
&c.,"  is  not  limited  to  cases  where  the  bank  is  authorized  to  charge 
seven  per  cent,  under  the  act  of  congress,  but  applies,  also,  where  a 
rate  is  fixed  by  the  state  law,  and  no  penalty  provided  by  that  law  for 
exceeding  it. 


244  NEW  JERSEY  SUPREME  COURT. 


Bramhall  v.  Atlantic  National  Bank. 


6.  On  a  loan  to  a  corporation  exceeding  llie  New  York  rate,  a  national 
bank  in  that  state  would  be  linble  to  forfeit  the  interest  or  amount 
agreed  to  be  paid  thereon  if  knowmgiy  taken,  received,  reserved  or 
charged  by  the  bank. 

7.  The  case  of  the  Xational  Bank  of  Whitehall  v.  Lamb  et  al.,  decided 
December,  1872,  is  only  an  adjudication  in  effect,  that  where  a  penalty 
is  provided  by  a  state  law,  a  national  bank  is  liable  to  it  for  usury. 

8.  The  oflicers  of  the  bank  supposed  tliat  they  were  buying  the  note  of 
the  endorsers  and  not  of  the  corporation  maker,  and  for  that  reason  the 
bank  was  not  held  liable  to  a  forfeiture  for  knowingly  ciiarging  usuri- 
ous interest ;  but  inasmuch  as  the  note  was  not  obtained  by  the  defend- 
ants for  value,  and  they  were  in  fact  accommodation  endorsers  or 
sureties  for  the  corporation,  the  recovery  by  the  bank  can  only  be  for 
the  amount  paid,  with  legal  interest. 


On  rule  to  show  cause  why  the  verdict  should  not  be  set 
aside,  &c. 

Argued  at  February  Term,  1872,  before  Eeasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Depue. 

For  the  defendant,  A.  T.  McGill,  Jr.,  and  R.  Gilchrist, 
Attorney-  Gen  eral . 

For  the  plaintiffs,  /.  Flemming  and  3lr.  Capwell,  of  New 
York. 

The  opinion  of  the  court  was  delivered  by 

Bedle,  J.  This  suit  is  founded  upon  two  promissory 
notes,  for  ^2954.74,  each ;  one  made  by  the  defendant  and 
endorsed  by  George  F.  Steinbrenner,  the  other  made  by  Stein- 
brenner  and  endorsed  by  the  defendant.  Both  notes  are  held 
by  the  plaintiffs.  Tiiese  notes  were  given  for  a  note  made 
by  the  New  York  and  Silver  Peak  Mining  Company,  for 
$5714.29,  and  payable  to  the  order  of  Bramhall  and  Stein- 
brenner, six  months  after  the  date  thereof,  with  interest  at  the 
rate  of  seven  per  cent,  which  note  was  endorsed  by  Bram- 
hall and  Steinbrenner  to  the  Atlantic  National  Bank,  the 
bank  paying  therefor  §5000,  and  which  note,  when  due,  was 
protested  for  non-payment. 

The  defence  at  the  trial  was  that  this  negotiation  by  the 
bank  was  virtually  a  loan  to  the  mining  company,  and  that  it 
was  usurious. 


JUNE  TERM,  1873.  '  245 

Bramhall  v.  Atlantic  National  Bank. 

The  mimng  company  was  a  corporation  organized  under 
the  laws  of  the  State  of  New  York,  and  all  of  the  notes  were 
drawn  and  made  payable  in  that  state.  The  ordinary  rate  of 
interest  in  New  York  is  seven  per  cent.,  and  the  penalty  for 
taking  a  greater  rate  is  a  forfeiture  of  the  claim.  Rev.  Stat., 
N.  Y.,  Vol.  Ill,  p.  72.  Such  was  the  law,  without  any  excep- 
tion, until  in  1850  the  legislature  passed  an  act  that  "bo  cor- 
poration shall  hereafter  interpose  the  defence  of  usury  in  any 
action."  Laws,  1850,  ch.  172,  p.  3^4.  This  provision  under 
the  New  York  decisions  prevents  a  corporation,  its  endorsers, 
guarantors,  or  sureties  from  avoiding  its  contract  on  the 
gfound  of  usury,  whether  technically  by  defence  or  affirma- 
.tive  action.  Rosa  v.  Butterfield,  33  N.  Y.  665  ;  Butterworth 
V.  O'Brien,  23  lb.  275  ;  Belmont  Bank  v.  Hoge,  35  lb.  69; 
Southern  L.  I.  &  T.  Co.  v.  Packer,  17  lb.  51  ;  Curtis  v.  Lea- 
vitt,  15  lb.  9;  MercNts  Ex.  N.  B'k  v.  Warehouse  Co.,  49 
Jb.  641. 

If  the  case  therefore  rested  entirely  upon  the  New  York 
law,  the  defence  of  usury  could  clearly  not  be  maintained. 
But  it  is  urged  by  the  defendant  that  inasmuch  as  there  is  no 
statute  in  New  York  limiting  the  rate  of  interest  that  a  cor- 
poration may  contract  to  pay,  that  the  act  of  congress  in 
regard  to  national  banks  becomes  applicable,  limiting  the 
interest  to  seven  per  cent.,  and  forfeiting  the  entire  interest 
or  whatever  is  agreed  to  be  paid,  if  more  than  seven  per  cent, 
is  knowingly  taken,  reserved,  or  charged.  Acts,  1864,^.  108, 
§  30. 

In  some  of  the  New  York  cases  referred  to  there  are  ex- 
pressions to  the  effect  that  the  usury  laws,  so  far  as  applicable 
to  corporations,  are  repealed  by  the  act  of  1850,  but  in  the 
case  of  the  Merchants  Ex.  N.  Bank  v.  Warehouse  Co.,  49  N. 
Y.  641,  Folger,  J.,  says  :  "  But  the  force  of  the  rea.soning  in 
them  as  a  whole,  and  the  bearing  of  the  facts  tlierein,  are  to 
•the  result  that  the  purpose  of  the  act  was  to  prevent  the 
avoidance  by  a  corporation  of  its  own  contract,  for  the  reason 
'that  it  was  made  in  contravention  of  the  laws  against  usury." 
The   contracts   intended    to    be   protected  were  undoubtedly 


246         NEW  JERSEY  SUPREME  COURT. 

Bramhall  w  Atlantic  National  Bank. 

special  and  it  cannot  be  held,  and  has  not  been  in  New  York, 
that  the  general  rate  of  seven  per  cent,  has  been  abrogated, 
so  far  as  the  right  to  take  it  against  a  corporation  is  concerned, 
in  the  absence  of  any  agreement  as  to  the  interest.  It  is 
clear  that  under  the  New  York  statute  seven  per  cent,  could 
be  collected  against  a  corporation  on  all  contracts  not  provi- 
ding for  the  interest.  {3d  Vol.  Rev.  Stat.  N.  Y.,  p.  72.) 
In  that  respect  the  act  of  1850  does  not  disturb  the  general 
rate  of  seven  per  cent.,  but  in  effect  repeals  all  penalties 
against  a  higher  rate  and  thereby  leaves  parties  at  liberty  to 
make  a  special  contract  with  a  corporation  without  limita- 
tion. It  does  not,  however,  follow  from  that,  that  the  rate 
fixed  by  act  of  congress  is  to  control  the  contract  in  question 
although  the  per  cent,  is  the  same.  The  act  of  congress  pro- 
vides in  substance  that  every  association  may  take,  receive,, 
reserve,  and  charge  on  any  loan  or  note,  &c.,  interest  at  the 
rate  allowed  by  the  laws  of  the  state  or  territory  where  the 
bank  is  located,  and  no  more  except,  &c.,  and  **  when  no  rate 
is  fixed  by  the  laws  of  the  state  or  territory,  the  bank  may 
take,  receive,  reserve,  or  charge  a  rat-e  not  exceeding  seven 
per  centum,  &c."  The  plain  purpose  of  this  provision  is 
to  allow  the  bank  to  charge  any  rate  fixed  by  the  laws  of  the 
state  or  territory  where  located,  and  in  case  no  rate  was  fixed 
to  provide  that  tie  interest  should  not  exceed  seven  per  cent. 
In  New  York,  as  already  stated,  there  is  a  general  rate,, 
and  applying  to  corporatioi/s  alike  with  others,  except  only 
•where  special  contracts  otherwise  are  made  with  corporations. 
This  must  undoubtedly  be  the  meaning  of  the  legislation  of 
that  state  and  of  their  adjudications.  Under  this  view  the 
rate  fixed  by  the  state  law  would  control  the  loans  of  the 
bank  without  any  power  to  make  contracts  exceeding  it  with 
corporations.  Had  the  rate  in  New  York  been  ten  jier  cent., 
I  have  no  doubt  that,  under  the  act  of  congress,  the  bank 
could  have  taken  it.  And  so  when  the  rate  is  seven  per  cent.^ 
the  same  as  that  mentioned  in  the  act  of  congress,  the  bank 
could  take  it,  not  by  virtue  of  such  act,  but  by  the  statute  of 
New  York. 


JUNE  TEEM,  1873.  247 

Bramhall  v.  Atlantic  National  Bank. 

But  in  the  case  before  us,  the  amount  reserved  by  the 
bank  exceeded  seven  per  cent.,  and  the  question  arises,  if  the 
payment  by  the  bank  is  to  be  regarded  as  a  loan  to  the 
mining  company,  whether  there  is  any  forfeiture  by  reason 
thereof.  It  was  held  by  the  Court  of  Appeals  of  New 
York,  in  1872,  in  the  case  of  The  National  Bank  of  White- 
hall V.  Lamb  et  al.,  50  N.  Y.  95,  that  a  national  bank 
was  subject  to  the  penalties,  for  usury,  of  the  state  laws, 
and  not  of  the  act  of  congress  in  states  having  usury  laws ; 
aud  one  of  the  grounds  of  the  reasoning  of  tiie  court  is,  that 
the  following  clause  in  the  thirtieth  section  of  the  act  of 
congress,  iu  the  paragraph  succeeding  that  already  recited, 
*'and  the  knowingly  taking,  receiving,  reserving,  or  charging 
a  rate  of  interest  greater  than  aforesaid,  shall  be  held  and 
adjudged  a  foi'feiture  of  the  entire  interest  which  the  note, 
bill,  or  other  evidence  of  debt  carries  with  it,  or  which  has 
been  agreed  to  be  paid  thereon,  &c.,"  refers  only  to  the  clause 
immediately  preceding,  and  limits  that  penalty  to  cases 
where  t*he  bank  is  authorized  to  charge  seven  per  cent,  by 
the  act  of  congress,  and  which  is  only  in  states  or  territories 
having  no  usury  laws,  or  in  other  words,  that  the  language,  "  a 
rate  of  interest  greater  than  aforesaid,"  refers  only  to  the  words 
in  the  preceding  clause,  "  a  rate  not  exceeding  seven  per  centum^* 
and  the  consequent  argument  being,  that  iu  New  York,  where 
a  rate  was  fixed,  the  penalty  of  the  act  of  congress  was  not 
intended  to  apply,  but  that  the  bank  was  left  subject  to  the 
penalties  of  the  usury  laws  of  the  state.  In  this  same  case, 
in  57  Barbour  429,  and  which  was  appealed  as  stated,  the 
Supreme  Court  held  that  the  penal  clause  referred  to  applied 
to  national  banks  in  New  York,  and  that  they  were  not 
subject  to  the  penalties  of  the  state  law.  That  was  a  case 
between  a  national  bank  and  individuals.  Whether  the 
court,  had  the  defendant  been  a  corporation,  would  have  car- 
ried out  the  same  line  of  argument,  and  left  a  national  bank 
not  liable  to  any  penalty,  because  none  was  provided  by  the 
state  law,  and  because  the  penalty  of  the  act  of  congress  did 
not  apply,  it  is  difficult  to  tell.     At  any  rate,  that  construe- 


248  NEW  JERSEY  SUPREME  COURT. 

Bramhall  v.  Atlantic  National  Bank. 

tion  of  a  law  of  congress  is  not  necessarily  binding  upon  ns, 
even  in  a  New  York  transaction ;  and,  apart  from  that,  the 
<iase,  as  an  adjudication,  does  not  extend  beyond  this,  that 
•where  a  penalty  is  provided  by  a  state  law,  a  national  bank 
is  liable  to  it  for  usury.  But  notwithstanding  the  reasoning 
referred  to,  whieh  is  entitled  to  great  respect  as  coming  from 
an  able  judge,  and  a  court  of  undoubted  learning,  I  am  con- 
strained to  hold  that  the  rate  of  interest  referred  to  in  the 
penal  clause  of  section  thirty,  refers  to  any  rate  that  the 
bank  is  authorized  to  take  by  either  of  the  preceding  para- 
graphs. Such,  I  think,  is  the  natural  reading  of  the  section. 
Under  this  view,  the  penal  clause  would  certainly  apply  to 
this  case,  where  a  rate  was  fixed  by  the  state  law,  and  no 
penalty  provided  in  that  law  for  exceeding  it.  Whether  the 
penal  clause  referred  to  is  constitutional  or  not,  so  far  as  it  is 
in  conflict  with  the  penal  provisions  of  state  laws,  need  not 
now  be  determined.  That  question  was  largely  discussed  in 
The  Bank  of  Whitehall  v.  Lamb  et  al.  It  is  sufficient  to 
say,  that  there  is  no  conflict  on  the  point  under  consideration. 

The  result  is,  that  on  a  loan  exceeding  the  New  York  rate, 
The  Atlantic  National  Bank  would  be  liable  to  forfeit  the 
interest  or  amount  agreed  to  be  paid  thereon,  if  knowingly 
taken,  received,  reserved,  or  charged  by  the  bank. 

This  conclusion  is  substantially  in  accordance  with  the 
charge. 

The  question  then  arises,  whether  the  evidence  would 
justify  the  verdict  that  the  bank  knowingly  charged  a  greater 
rate  of  interest  than  the  New  York  rate?  It  is  claimed  by 
the  bank,  that  this  transaction,  so  far  as  its  officers  were  con- 
cerned, was  not  a  loan  to  the  mining  company,  but  that  the 
money  was  paid  for  the  purchase,  from  Bramhall  and  Stein- 
brenner,  of  the  mining  company's  note.  In  other  words,  that 
it  was  a  sale  of  the  note  to  the  bank.  The  defendant  insists 
that  he  and  Steinbrenner  were  simply  accommodation  en- 
dorsers for  the  mining  company,  ami  that  the  bank  negoti- 
ated the  note  for  the  company,  on  condition  that  they  wouM 
■endorse  it. 


JUNE  TERM,  1873.  249 

Bramliall  v.  Atlantic  National  Bank. 

That  note  was  one  of  a  series  of  notes,  amounting  to  about 
$33,000,  ordered  issued  by  the  mining  company,  most  of 
which  were  discounted  or  jjurchased  by  the  trustees  and  stock- 
holders of  the  company,  at  a  discount  of  twelve  and  a  half 
per  cent. 

The  insistment  of  the  bank  is,  that  this  note  of  $5714.29 
was  actually  purchased  by  Bramhall  and  Steinbrenner,  of  the 
company,  they  being  stockhohlers,  and  Bramhall  a  trustee,  at 
the  discount  stated,  and  after  that,  that  it  was  negotiated  by 
them  to  the  bank. 

Assuming  that  the  weight  of  evidence  is  against  the  fact 
of  the  purchase  by  Bramhall  and  Steinbrenner,  there  was 
evidence  from  which  the  jury  could  find  that  the  officers  of 
the  bank  did  not  suppose  that  they  were  negotiating  the  note 
for  the  company,  and  thereby  making  a  loan,  but  supposed,  ia 
fact,  that  they  were  buying  the  note  of  Bramhall  and  Stein- 
brenner, and  that  they  (Bramhall  and  Steinbrenner)  had 
negotiated  it  with  the  company. 

The  court,  therefore,  are  not  disposed  to  disturb  the  verdict 
upon  the  ground  that  the  bank  knowingly  charged  a  usurious 
interest.  In  this  connection,  an  exception  may  be  noted  to  a 
refusal  to  charge  the  jury  as  requested  by  the  defendant,  "  that 
if  they  believe  that  the  note  of  the  mining  company  was  never 
delivered  to  Bramhall  and  Steinbrenner,  and  that  they  had. 
never  paid  anything  for  it,  but  that  they  endorsed  it  as  accom- 
modation endorsers,  that  it  was  negotiated  for  the  first  time,, 
and  if  more  than  seven  per  cent,  was  paid  it  was  usurious." 
This  refusal  to  charge  was  not  an  error,  for  if  the  facts  were 
found  by  the.  jury,  as  requested,  another  element  would  still 
be  wanting,  and  that  was  a  knowledge  of  the  facts  by  the 
plaintiff". 

But  notwithstanding  all  this,  the  question  is  still  important 
whether  the  note  had  been  actually  negotiated  by  Bramhall 
and  Steinbrenner  of  the  mining  company,  for  if  not,  and  they 
were  mere  accommodation  endorsers,  the  bank  would  be,  in 
legal  effect,  making  a  loan  to  the  company  at  a  rate  higher 
than  authorized ;    the  consequence  of  which  would    be,  not 


250  NEW  JERSEY  SUPREME  COURT. 

Booth  ads.  "Wonderly. 

that  the  bank  would  be  liable  to  a  forfeiture,  if  not  knowingly- 
doing  it,  but  that  the  bank  would  be  prevented  from  recover- 
ing more  than  the  legal  rate  of  interest  for  the  money  actually 
paid. 

The  weight  of  evidence  on  this  subject  is,  that  the  note  was 
not,  in  fact,  obtained  by  Brarahall  and  Steinbrenner  for  value, 
but  that  they  were  really  accommodation  endorsers  or  sureties. 
Under  these  circumstances,  the  bank  is  not  entitled  to  recover 
more  than  the  actual  amount  paid,  with  legal  interest.  The 
act  of  congress  does  not  prevent  that,  where  the  excess  of 
proper  interest  was  not  knowingly  reserved.  And  if,  in  point 
of  fact,  it  was  not  a  sale  to  the  bank  by  reason  of  Bramhall 
and  Steinbrenner  being  accommodation  endorsers,  and  no 
fraud  on  the  part  of  Bramhall  and  Steinbrenner,  so  as  to  estop 
them  from  setting  up  that  it  was  not  such  a  sale,  then  there 
is  no  reason  why  the  bank  should  not  be  reimbursed  for  the 
amount  paid,  together  with  such  interest  as  it  could  legally 
take.  The  verdict  was  for  the  full  amount  of  the  two  notes, 
M'ith  interest.  These  notes  include  an  excess  of  principal  over 
the  $5000  paid  by  the  bank.  The  verdict,  so  far  as  it  ex- 
ceeded $5000,  and  interest  at  seven  per  cent,  from  April  3d, 
1869,  when  the  first  note  was  obtained  by  the  bank,  is  erro- 
neous. If  the  bank  will  reduce  the  verdict  to  the  proper 
amount  indicated  during  the  term,  the  verdict  may  stand, 
otherwise  a  new  trial  will  be  ordered.  $5000  having  been 
paid  as  a  condition  on  which  this  rule  was  granted,  the  new 
trial  if  had,  will  be  limited  to  the  excess  of  the  claim  of  the 
bank  over  the  $5000  already  paid. 


ZALMON  S.  BOOTH,  STEPHEN  B.  MASTEKS  ET  AL.  ads.  JOSEPH 
H.  WONDERLY,  SURVIVING  PARTNER  OF  POTTER  &  CO. 

1.  A  fire  insurance  company  cannot  be  established  in  Jersey  City  instead 
of  Trenton,  under  a  cliarter  for  such  a  company  to  be  located  in 
Trenton.  It  is  a  perversion  of,  and  a  fraud  upon,  the  act,  and  gives 
no  corporate  color  to  the  company  for  the  protection  of  those  who 


JUNE  TERM,  1873.  251 

Booth  ads.  Wonderly. 

were  engaged  in,  or  lent  themselves  knowingly  to  the  scheme.  Such 
an  organization  in  Jersey  City  is  entirely  outside  of  the  act,  and  has 
no  existence  as  a  corporation,  real  or  de  facto. 

A  policy  issued  by  such  a  company  in  Jersey  City  can  be  enforced 
against  the  directors  personally,  where  they  consented  to  become 
directors,  or  knowingly  allowed  themselves  to  be  held  out  to  the 
world  as  such. 


On  rule  to  show  cause  allowed  by  the  judge  at  the  circuit. 
For  the  rule,  J.  Dixon. 
Contra,  6'.  B.  Ransom. 

The  opinion  of  the  court  was  delivered  by 

Bedle,  J.  This  suit  was  brought  against  Booth,  Masters 
and  others,  as  insurers,  on  a  policy  issued  May  4th,  1868,  in 
the  name  of,  and  by  a  company  called  the  Mariners'  Insur- 
ance Company,  to  Potter  &  Co.,  the  same  being  signed  by  J. 
Jackson,  president,  and  S.  Chandler,  assistant  secretary.  The 
property  insured  was  in  Pennsylvania,  and  consisted  of  a 
building  and  machinery  used  as  a  saw  and  planing  mill  and 
sash  factory.  The  policy  was  issued  at  tlie  office  of  the  com- 
pany in  Jersey  City,  the  insurance  having  been  elfected  in 
behalf  of  Potter  &  Co.  by  an  insurance  agent  at  that  place. 
The  property  was  burned  June  10th,  1868.  The  verdict  was 
for  the  plaiutilf,  against  some  of  the  defendants,  including 
Booth  and  Masters,  and  this  rule  was  obtained  by  these  two. 
The  liubi!i(y  t-f  the  defendants  was  sought  on  the  ground  that 
the  cumpany  was  unincorporated,  and  that  the  defendants 
were  ihi;  real  principals;  or  if  Booth  and  Masters  were  not 
principals  by  actual  arrangement,  that  they  consented,  or 
allowed  themselves  to  be  made  directors,  and  to  be  held  out 
to  the  public  as  such,  and  the  business  of  insurance  to  be 
carried  on  under  their  authority,  real  or  apparent. 

The  company  was  organized  about  in  January,  1868,  and 
survived  till  in  August  of  the  same  year,  when  it  collapsed 
without  assets.  It  was  evidently  a  fraudulent  concern,  set 
np  and  manipulated  by  two  or  three  chief  managers ;  but  the 


252  NEW  JERSEY  SUPREME  COURT. 

Booth  ads.  Wonderly. 

just  conclusion  from  the  evidence  is,  that  the  two  defendauta 
named  were  not  guilty  of  intentional  fraud,  although  they 
may  have  been  so  far  complicated  as  to  make  themselves 
liable  for  the  contracts  of  the  company. 

The  company  had  some  semblance  of  a  corporation,  in 
name,  form  of  organization,  and  assumption  of  a  seal,  yet  not 
enough  to  give  it  a  de  facto  corporate  existence.  The  policy 
does  not  mention  the  company  as  incorporated.  They  issued 
business  cards,  giving  the  name  of  the  company  and  a  list  of 
directors  (being  the  defendants  in  this  cause),  besides  the 
names  of  persons  as  president,  vice-president,  secretary,  and 
assistant  secretary,  but  making  no  mention  of  an  incorpora- 
tion. These  cards  and  the  policy,  in  appearance,  were  not 
necessarily  inconsistent  with  an  unincorporated  company,  yet 
they  had  a  corporate  color.  But,  behind  all  this,  the  case 
developed  an  effort  to  make  out  of  it  at  least  a  de  facto  cor- 
poration. The  chief  mover  in  the  fraud  was  a  man  by  the 
name  of  Logan,  who  bargained  with  another,  Thomas  W. 
Noble,  for  the  purchase  of  a  charter  of  a  corporation  passed 
March  17th,  1865,  to  be  called  "The  Mariners'  Mutual  In- 
surance Company."  This  charter  was  intended  by  the  legis- 
lature for  a  local  corporation  at  Trenton.  It  provides  that 
the  operations  and  business  of  the  corporation  shall  be  carried 
on  and  conducted  at  Trenton,  and  also  that  the  directors 
shall  be  elected  there.  It  also  was  intended  that  the  corpora- 
tion should  be  a  mutual  insurance  company,  and  the  direct- 
ors are  required  to  be  members,  but  with  the  right  to  make 
especial  insurances  without  the  insured  becoming  members, 
if  they  so  desired.  It  also  provided  that  before  commencing 
operations  upon  other  than  a  mutual  plan,  a  cash  capital  of 
S50,000  should  be  paid  in.  This  charter  seems  to  have  been 
in  the  market  at  Trenton,  without  any  organization  under  it, 
up  to  the  time  of  the  bargain  between  Logan  and  Noble. 
No  connection  was  shown  in  any  way  between  the  corporators 
named  in  it  and  Noble,  or  those  who  attempted  to  organize 
under  it  in  Jersey  City.  As  the  evidence  stands,  there  was 
no  organization  in  Trenton,  no  stock  subscribed  ©r  paid  in^ 


JUNE  TERM,  1873.  253 

Booth  ads.  Wonderly. 

or  any  effort  to  do  business  there  at  any  time.  There  was  a 
meeting  at  Trenton  at  the  time  Logan  made  the  purchase,  at 
which  Noble  says  Logan,  Masters,  Booth,  and  himself,  and, 
he  thinks,  two  others,  were  present.  Not  one  of  them  a  cor- 
porator named  in  the  act.  This,  Noble  says,  was  an  informal 
gathering,  and  that  he  and  Logan  had  some  talk  about  an 
organization  of  the  company,  but  that  an  organization  was  not 
perfected.  The  evidence  shows  that  nothing  was  done  there 
at  that  meeting  towards  any  organization  at  Trenton,  either 
by  an  election  of  directors,  subscription  to  stock,  or  otherwise, 
but  that  Logan  and  Noble,  at  least,  expected  and  intended 
that  the  company  should  be  organized  and  established  in 
Jersey  City.  In  furtherance  of  this  idea,  a  meeting  was 
afterwards  held  in  Jersey  City,  at  which  the  company  was 
formed,  or  organized,  and  persons  selected  by  Logan,  in  some 
Avay  not  exactly  clear,  as  directors.  Among  those  selected 
were  Booth  and  Masters.  Noble  attended  this  meeting,  and 
consented,  as  he  says,  to  act  as  a  sort  of  secretary  for  the  or- 
ganization of  the  company,  and  held  on  to  the  office  nominally 
until  he  got  his  pay  for  the  charter — about  $500.  The  fair 
result  of  the  evidence  is,  that  there  was  no  stock  bona  fide  sub- 
scribed  or  paid  in,  and  doubtful  if  any  nominally  subscribed. 
The  name  assumed 'was  not. the  name  in  the  charter — the  word 
Mutual  being  left  out — the  evident  reason  for  that  being,  that 
it  was  intended  to  organize  the  company  on  a  stock  basis,  or 
pretence,  the  mutual  system  not  comporting  with  the  design  of 
the  undertaking.  Without  referring  further  to  the  evidence, 
the  case  showed  an  effort  to  get  control  of  this  local  charter, 
and  pervert  it  from  the  purpose  intended  by  the  legislature. 
The  intention  of  the  scheme  was  to  establish  this  company  at 
Jersey  City,  and  give  it  a  corporate  color  by  means  of  thi» 
local  act.  This  charter  belongs  to  that  class  of  acts  for  pri- 
vate corporations  peculiarly  of  a  local  character,  as  banks, 
savings,  and  like  institutions,  which  are  intended  to  be  estab- 
lished and  conducted  in  certain  localities.  It  would  be  just 
as  legal  to  attempt  to  locate  a  savings  bank  in  Camden,  under 
an  act  for  one  in  Jersey  City,  as  to  establish  an  insurance 
Vol.  VII.  16 


254  NEW  JERSEY  SUPREME  COURT. 

Bootli  ads.  Wonderly. 

company  in  Jersey  City  under  this  charter.  What  the  legis- 
lature intended  in  this  particular  act,  is  a  question  of  con- 
struction merely,  and  there  can  be  no  doubt  that  The  Mari- 
ners' Mutual  Insurance  Company  contemplated  by  that  act, 
was  intended  to  be  peculiarly  a  Trenton  institution.  To 
attempt  to  establish  it  in  Jersey  City  \vas  a  palpable  and 
€ntire  perversion  of  the  object  of  the  act,  and  must  be  held  to 
be  void.  It  gave  no  corporate  color  to  the  company  that  the 
courts  should  recognize  for  the  protection  of  those  who  were 
engaged  in,  or  who  lent  themselves  knowingly  to  the  scheme. 
It  was  a  fraud  upon  the  act.  Hill  v.  Beach,  1  Beasley  36. 
The  doctrine  that  the  organization  cannot  be  inquired  into 
collaterally,  has  no  application  as  the  case  stands,  because  the 
charter  does  not  fit  this  company,  and  was  not  intended  for 
it.  The  organization  is  entirely  outside  of  the  act,  and  has 
no  existence  as  a  corporation,  real  or  de  facto.  The  extent  to 
which  a  corporate  body  under  such  a  charter  may  contract  in 
other  places  than  where  located,  is  not  in  the  case,  with  its 
])resent  aspect.  This  is  a  question  of  power  merely,  while 
the  question  before  us  now  is  one  of  corporate  existence. 
That  the  company  were  unincorporated,  the  court  was  war- 
ranted in  assuming  under  the  case  as  it  appeared  at  the  trial. 
The  other  ground  of  liability  was,  that  the  defendants  were 
either  the  principals  in  fact  in  the  formation  of  the  company 
and  its  business,  or  that  Booth  and  Masters  consented,  or 
knowingly  allowed  themselves  to  be  used  as  such,  or  as 
4iirectors,  and  the  business  to  be  done  under  their  authority 
as  directors,  real  or  apparent.  This  policy  was  issued  at  the 
office  of  the  company  in  Jersey  City,  in  the  course  of  their 
business,  and  within  the  scope  of  the  directors'  control  and 
management.  The  business  of  the  company  was  to  make 
insurances,  and  the  office  of  the  directors  was  such,  as  that 
the  authority  and  management  must  necessarily  be  with  the 
directors.  This  part  of  the  case  rests  upon  two  grounds,  one 
whether  Booth  and  Masters  were  actually  members  of  the 
company ;  the  other,  whether  they  consented  to  become 
directors,  or  knowingly  allowed  themselves  to  be  held  out  to 


JUNE  TERM,  1873.  255 

Booth  ads.  Wonderly. 

the  world  as  such.  The  company  being  unincorporated 
there  was  no  principal  to  whom  resort  could  be  had,  unless 
the  directors  are  regarded  as  principals.  The  evidence  shows 
that  the  liability  of  these  two  defendants  was  sought  chiefly 
o»  the  second  ground,  and  there  are  two  principles  of  law 
upon  which  that  liability  may  be  founded.  One  is,  that  if 
an  agent  contracts,  although  as  agent  without  a  legally  re- 
sponsible principal  to  whom  resort  may  be  had,  the  law  pre- 
sumes that  he  contracts  on  his  personal  responsibility,  and 
intends  to  Jbind  himself,  and  so  holds  him,  for  in  no  other 
way  could  the  contract  have  any  validity.  Story  on  Agency, 
§§  280,  281,  282 ;  2  Kent  Com.  630 ;  Dunlap'.s  Pcdey  on  Agency 
374;  Kelner  v.  Baxter,  L.  R.,  2  C.  P.  174;  Furnivall  v. 
Coombes,  5  M.  &  G.  736 ;  Bay  v.  Cook,  2  Zah.  343. 

And  that  liability  may  be  founded  directly  upon  the  con- 
tract, unless  there  is  something  in  its  terms  making  it  neces- 
sary to  proceed  specially  for  contracting  without  authority. 
There  is  no  difficulty  in  founding  the  action  directly  upon 
this  policy. 

The  other  principle  is  the  familiar  one  that  when  one  of 
two  innocent  parties  must  suffer  by  the  fraud  of  a  third,  he 
who  gave  the  ©ccasion  for  the  fraud  or  the  means  of  credit, 
should  bear  the  loss.  This  is  founded  on  public  policy  and 
is  necessary  to  prevent  frauds.  In  this  case  there  is  no  pre- 
tence of  any  credit  in  the  making  of  the  contract  having 
been  given  by  Potter  &  Co.,  or  on  their  behalf  to  any  exist- 
ing principal.  The  insurance  was  effected  by  the  agent  for 
theni,  he  supposing  it  was  an  incorporated  company,  and, 
besides,  he  had  received  from  Logan  the  business  cards  of  the 
company,  with  the  names  of  Booth  and  Masters  on  as  dlrec- 
twrs,  whom  he  knew,  and  which  had,  as  he  says,  some  influ- 
ence in  making  the  insurance  with  that  company.  In 
England,  when  a  joint  stock  company  is  in  the  preliminary 
stages  of  formation,  before  an  act  of  incorporation  is  had,  or 
complete  registration  effected  under  the  companies  clauses 
acts,  and  where  th-:;re  is  a  preliminary  board  of  directors^ 
those  who  have  consented  to  become  directors,  or  knowingly 


256  NEW  JERSEY  SUPREME  COURT. 

Booth  ads.  Wonderly. 

allowed  themselves  to  be  l^ld  out  to  the  world  as  directors, 
are  responsible,  as  principals  or  partners,  for  all  contracts, 
express  or  implied,  within  the  scope  of  the  busiaess  of  the 
direction.  Fox  v.  Clifton  9  Bing.  115;  Maddick  v.  Mar- 
shall, 16  a  B.  (K  S.)  387;  S.  C.  in  Exch.,  17  lb.  828; 
Collingwood  v.  Berkeley,  15  lb.  145 ;  Bell  v.  Francis,  9  C.  & 
F.  66 ;  Collyer  on  Part,  §  1086. 

The  liability  is  that  of  partners,  and  the  doctrine  of  these 
cases,  as  they  stand,  is  applicable  to  this  kind  of  an  operation 
and  all  other  kindred  schemes  of  speculation,  adventure,  or 
fraud. 

It  is  not  if  tended  to  discuss  the  facts  pertaining  to  this 
part  of  the  case.  The  evidence  is  not  free  from  difficulty,  as 
to  the  two  defendants.  It  is  sufficient  however  to  say  that 
tJie  verdict  is  sustainable  upon  the  evidence,  but  inasmuch  as 
a  new  trial  will  result  for  another  reason,  it  is  entirely 
satisfactory  that  the  facts  will  be  again  passed  upon  by, the 
jury. 

.  None  of  the  other  grounds  urged  for  a  new  trial  are 
sufficient,  except  that  in  reference  to  the  preliminary  proofs. 
The  defects  of  the  evidence  in  that  respect,  can  probably  be 
remedied  on  another  trial.  As  the  case  now  stands  there 
should  be  a  new  trial  for  this  reason  alone. 

Note.  The  opinion  in  this  case  was  delivered  at  the 
February  Term,  1871 ;  it  wjis  not  filed  until  February  Term, 
1874.  The  case  was  retried  at  the  Hudson  Circuit  and  a 
verdict  again  obtained  by  the  plaintiff,  upon  which  judg- 
ment was  entered  accordingly. 


JUNE  TERM,  1873.  257 


O'Donnell  ads.  Brehen. 


ED  W  A  ED  O'DONNELL  ads.  EDWAKD  BREHEN. 

The  plaintiff  made  an  agreement  with  the  defendant  to  let  him  take  the 
sand  out  of  a  pit  fifty  feet  wide,  the  entire  length,  for  the  sum  of  $650, 
and  gave  him  one  year's  time  to  take  it  out ;  the  agreement  was 
signed  by  the  plaintiff,  and  not  by  the  defendant.  Seld,  that  the 
agreement  was  for  the  sale  of  an  interest  in  lands,  and  not  having 
been  signed  by  the  defendant,  is  as  to  him,  by  force  of  the  statute  of 
frauds,  void. 

On  rule  to  show  cause  why  verdict  should  not  be  set  aside. 

Submitted  on  written  briefs. 

For  the  defendant,  J.  H.  Lippincott. 

For  the  plaintiff,  Jonathan  Dixon, 

The  opinion  of  the  court  was  delivered  by 

Dalrimple,  J.  When  this  case  was  before  the  court  on 
demurrer,  [vide  5  Vroom  408,)  it  was  held  that  the  contract 
sued  on  bound  the  defendant  to  pay  for  the  sand  sold,  on  de- 
livery of  the  contract,  and  that  the  stipulatioH  to  pay,  and  that 
to  deliver,  were  independent,  the  defendant  being  bound  to 
pay  for  the  sand  on  delivery  of  the  contract,  and  could  not 
resist  an  action  for  the  purchase  money  on  the  ground  that 
ife  was  brought  before  the  property  sold  was  taken  from  the 
lots  to  which  it  was  a  part.  The  case  now  comes  before  the 
-court  on  rule  to  show  cause  why  the  verdict  which  the  plain- 
tiff has  obtained  for  the  whole  contract  price,  less  the  pay- 
ments made,  should  not  be  set  aside  and  a  new  trial  granted. 
It  appears  that  the  contract  of  sale  on  which  the  plaintiff 
relies,  though  in  writing,  is  not  signed  by  the  defendant.  It 
•is  as  follows: 

"Hudson  City,  January  1st,  1868.  $650  contract.  I 
4o-day  made  the  agreement  with  Edward  O'Doimell,  to  let 


258  NEW  JERSEY  SUPREME  COURT. 

O'Donnell  ads.  BreheB. 

him  take  the  sand  out  of  the  pit  fifty  feet  wide,  the  entire 
length,  for  the  sum  of  $650,  and  give  him  one  year's  time 
to  take  it  out,  from  the  date  above. 

(Signed)  "  Edward  Brehen,  Jr." 

It  seems  to  me  quite  clear,  though  there  may  be  some  con- 
flict in  the  authorities  bearing  on  the  question,  that  this  agree- 
ment is  for  the  sale  of  ar  interest  in  lands,  and  not  having 
been  signed  by  the  defendant,  is  as  to  him,  by  force  of  the 
statute  of  frauds,  void.  In  the  case  of  Tyler  v.  Bennett,  5  A. 
&  E.  2>11,  it  was  held  that  a  right  to  take  water  from  a  well 
is  an  interest  in  land,  and  in  Scorell  v.  Boxall,  1  Younge  & 
Jervis  396,  that  a  sale  of  growing  underwood  to  be  cut  by  the 
purchaser,  gives  an  interest  in  land.  It  is  settled  in  New 
York,  after  considerable  discussion  of  the  point,  that  the 
natural  produce  of  the  earth  is  real  estate,  and  fructus  iridus- 
triahs  are  chattels  which  may  be  sold  by  verbal  contract,  or 
on  execution,  as  personal  property.  Green  v.  Armstrong,  1 
Deniobbl',  Warren  v.  Leland,  2  Barbour  614;  Piei'repont 
V.  Barnard,  5  BdLrbour  364.  There  are  cases,  undoubtedly, 
where  part  of  the  land  may,  in  contemplation  of  law  be 
severed  from  the  remainder,  and  become  personal  property. 

It  appeared,  on  the  trial  of  this  case,  that  the  defendant) 
had  paid  for  all  of  the  sand  taken.  He  contested  the  plain- 
tiff's right  to  recover  by  virtue  of  the  contract  for  that  part 
of  the  sand  not  taken,  and  which  it  was  alleged  and  proved 
the  plaintiff  had,  by  deed  made  subsequent  to  the  contract,, 
sold  and  conveyed,  as  part  of  his  soil  and  freehold,  to  third 
parties.  It  is  immaterial,  that  the  defendant  took  and  re- 
moved the  sand,  pay  for  which  is  now  claimed  by  the  plain- 
tiff, inasmuch  as  at  that  time  the  ownership  of  the  property 
was  in  neither  the  plaintiff  nor  defendant,  but  in  the  plain- 
tiff's grantees,  to  wliom  the  defendant  was  accountable,  and 
to  whom  he  did  account  for  all  the  sand  taken  after  the  deed 
to  them  was  made  by  the  plaintiff.  The  plaintiff  is 
obliged  to  reW  on  his  contract  alone,  and  that  not  having 


JUNE  TERM,  1873.  259 

Lehigh  Valley  R.  R  Co.  v.  Stewart. 

been  signed  by  the  defendant,  he  is  not  liable  thereon,  and  the 
rule  to  show  cause  must  be  made  absolute. 


THE   LEHIGH  VALLEY    EAILEOAD    COMPANY    v.    COENE- 
LIUS  STEWAET  AND  JOSEPH   C.  STEWART. 

Construction  of  contract, — Held,  that  by  a  proper  construction  of  the 
contract  between  the  parties,  the  defendants  are  only  entitled  to  claim 
a  drawback  on  the  tolls  paid  for  goods  carried  on  the  thirty-two  boats 
mentioned  in  the  agreement,  which  constitute  the  "freight  line'* 
therein  mentioned. 


Submitted  on  written  briefs  at  February  Term,  1873. 
For  the  plaintiffs,  T.  N.  McCarter. 
For  the  defendants,  J.  Vanatta. 

The  opinion  of  the  court  was  delivered  by 

Dalrimple,  J.  The  question  raised  by  the  demurrer  to 
the  plaintiffs'  second  replication  to  the  defendants'  second  plea 
is  as  to  the  proper  construction  and  meaning  of  a  certain  con- 
tract in  writing  entered  into  between  the  Morris  Canal  and 
Banking  Company  and  the  defendants. 

The  action  is  brought  for  certain  tolls  alleged  to  be  due 
from  the  defendants  to  the  plaintiffs.  The  defendants  plead 
that  they  have  paid  all  tolls  for  which  the  plaintiffs  can  make 
claim,  except  a  certain  sum,  as  to  which  they  say  that  they 
are  entitled  to  retain  as  offset  a  sum  of  equal  amount  by  way 
of  drawback  under  the  said  contract,  which  is  set  out  in  the 
plea,  and  the  substance  of  which,  so  far  as  necessary  to  be  now 
stated,  is  that  the  Morris  Canal  and  Banking  Company  leased 
thirty-two  boats  to  the  defendants,  for  the  term  of  five  years, 
at  a  certain  stipulated  price,  to  be  paid  in  ten  equal  semi- 


260  NEW  JERSEY  SUPKEME>  COURT. 

Lehigh  Valley  K.  R.  Co.  v.  Stewart. 

annual  instalments,  with  interest.  Upon  the  payment  of  the 
last  instalment  bills  of  sale  for  the  boats  were  to  be  executed 
by  the  company  to  the  defendants.  The  defendants  were  to 
furnisli  the  said  boats  with  the  necessary  riggkig  and  hands, 
and  to  employ  them  in  a  freight  line  upon  and  over  the  Mor- 
ris canal  exclusively,  and  to  keep  the  number  of  boats  in  the 
said  freight  line  during  the  said  term  of  five  years,  equal  to 
the  nu-mber  of  boats  leased,  and  to  pay  full  rates  of  toll, 
according  to  the  printed  rates  for  the  time  being,  as  estab- 
lished and  published,  upon  all  articles  transported  over  the 
Morris  canal,  in  the  said  boats  employed  by  the  said  freight 
line.  The  company  agreed  to  allow  the  defendants  a  draw- 
back of'one-half  of  such  tolls,  upon  all  articles  (with  certain 
€xcei)tions)  "  as  shall  be  transported  by  the  said  defendants 
in  the  said  boats  of  said  freight  line  upon  the  said  canal," 
and  further,  that  no  drawback  from  the  established  rates  of 
toll  should  be  allowed  to  any  other  parties  competing  with 
the  said  freight  line  of  the  defendants,  for  the  same  business, 
during  the  said  term  of  five  years,  unless  the  defendants 
should,  by  negligence,  carelessness,  or  otherwise,  fail  to  secure 
and  maintain  the  business  which  it  was  contemplated  and 
intended  should  be  transacted  arnd  carried  on  by  the  said 
freight  line;  that  whenever  the  lease  should  be  terminated, 
the  company  should  take  from  the  defendants  the  boats  em- 
ployed in  the  said  freight  Jine,  at  their  proper  value  as  coal 
boats,  and  that  if  the  defendants  should  fulfill  said  agreement 
on  their  part,  the  said  company  would,  from  time  to  time, 
give  lawful  bills  of  sale  for  such  of  said  boats  as  might 
become  unfit  for  use  in  the  said  freight  line. 

To  the  plaintiffs'  claim  for  tolls  the  defendants  set  up,  in 
•their  second  plea,  the  right  to  a  drawback  on  all  tolls  for 
freight  carried  in  the  boats  mentioned  in  the  said  contract,  as 
well  as  in  all  others  used  by  them  in  the  same  business. 
This  defence  is  sought  to  be  maintained  on  the  ground  that 
the  meaning  of  the  words  "freight  line"  embraces  not  only 
the  thirty-two  boats  mentioned  in  the  contract,  but  all  others 
used  by  the  defendants  in  connection  therewith,  in  the  same 


JUNE  TERM,  1873.  261 

Lehigh  Valley  K.  E.  Co.  v.  Stewart. 

Hue  of  transportation.  The  intention  of  the  parties  must  be 
gathered  from  the  whole  agreement  read  together,  and  I  think 
it  is,  that  the  defendants  are  to  keep  up  a  line  of  thirty- two 
boats,  neither  more  nor  less,  and  that  the  drawback  applies 
only  to  the  freight  carried  in  that  number  of  boats.  I  have 
come  to  this  conclusion  for  the  following,  among  other  reasons  : 

First.  The  defendants  agree  to  keep  the  number  of  boats 
in  the  said  freight  liue,  during  the  said  term  of  five  years, 
equal  to  the  number  of  boats  granted  and  leased,  which  num- 
ber is  thirty-two. 

Second.  The  company  agrees  to  take  from  the  defendants  at 
the  termination  of  the  lease,  the  boats  employed  in  the  said 
•freight  line,  at  their  proper  value  as  coal  boats,  which  I  think 
very  clearly  shows  that  the  parties  understood  they  were  deal- 
ing in  reference  to  the  precise  number  of  boats  specified  in  the 
contract,  and  none  others. 

Third.  It  is  not  reasonable  to  suppose  that  the  company  in- 
tended to  give  the  defendants  the  advantage  of  the  drawback, 
as  to  an  indefinite  number  of  boats,  when  the  only  language 
used  to  denote  such  intention  is  freight  transported,  "  in  the 
boats  of  the  said  freight  line."  The  boats  here  referred  to  are 
the  same  thirty-two  before  mentioned. 

Fourth.  The  stipulation  of  the  defendants  to  pay  full  rates 
of  toll  "  upon  all  articles  which  may  be  transported  upon  and 
over  the  Morris  canal  in  the  said  boats,  employed  in  the  said 
freight  line,"  shows  not  only  that  the  boats  to  which  the  parties 
had  reference  were  the  same  thirty-two  boats  before  mentioned, 
but  that  the  freight  line  was  restricted  to  the  like  number. 
.  This  construction  of  tlie  contract  disposes  of  the  case.  The 
plea  being  bad,  the  plaintiff,  for  that  reason,  is  entitled  to 
judgment  on  the  demurrer. 

Judgment  reversed,  9  Vr.  506. 


262  NEW  JERSEY  SUPREME  COURT. 


Wolcott,  Johnson  &  Co.  v.  Mount. 


WOLCOTT,  JOHNSON  &  CO.  v.  LEWIS  D.  MOUNT. 

1.  A  statement  in  a  contract  of  sale,  descriptive  of  the  thing  sold,  if  in- 
tended to  be  part  of  the  contract,  is  a  condition,  on  the  failure  of  which 
the  purchaser  may  repudiate,  or,  if  a  rescission  lias  become  impossible, 
it  may  be  treated  as  a  warranty,  for  the  breach  of  which  damages  may 
be  recovered. 

2.  It  is  a  question  of  fact,  to  be  determined  from  all  the  circumstances  of 
the  case,  whether  a  representation,  descriptive  of  the  articles  sold  by  a 
name  by  which  it  is  known  in  the  market,  is  an  expression  of  judgment 
or  opinion  only,  or  was  intended  as  a  warranty. 

3.  Loss  of  profits  may  be  recovered  as  damages  for  the  non-performance 
of  a  contract,  if  the  loss  results  directly  from  the  breach  of  the  con- 
tract itself,  or  is  such  as  might  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  both  parties  at  the  time  of  the  making  of  the 
contract,  as  the  result  of  non-performance ;  provided  that  the  profits 
to  be  compensated  for  are  such  as  are  capable  of  being  ascertained  by 
the  rules  of  evidence,  to  a  reasonable  degree  of  certainty. 

4.  The  measure  of  damages  in  actions  on  contract  considered. 

5.  M.,  a  market  gardener,  applied  to  W.  &  Co.,  merchants,  who  kept  agri- 
cultural seeds  for  sale,  for  "  early  strap-leafed  red-top  turnip  seed" 
W.  showed  him  the  seed  which  he  said  was  that  kind,  and  sold  it  to 
him  as  such.  M.  informed  \V.,  at  the  time  of  the  purchase,  that  he 
wanted  that  kind  of  seed  to  raise  a  crop  for  the  early  market.  M. 
sowed  the  seed,  and  it  turned  out  to  have  been  another  kind  of 
turnip  seed,  of  an  inferior  quality.  The  representation  was  made  in 
good  faith,  W.  &  Co.  having  purchased  the  seed  as  early  strap-leafed, 
red-top  turnip  seed.  In  an  action  for  breach  of  warranty — Held  on 
certiorari, 

1.  That  the  question  whether  tho  statements  were  merely  an  expression 
of  opinion  or  a  warranty,  was  one  of  fact  in  the  court  below,  and  the 
evidence  tending  to  show  that  a  warranty  was  made,  the  finding  could 
not  be  reviewed. 

2.  That  the  measure  of  damage  was  the  difference  between  the  market 
value  of  the  crop  raisod  and  the  same  crop  from  tlie  seed  ordered. 


On  certiorari  to  the  Monmouth  Pleas,  on  the  trial  of  an 
appeal  from  the  ji'dgment  of  a  justice  of  the  peace. 

The  cause  vras  argued  in  this  court  on  the  following  state- 
ment of  the  cise : 


JUNE  TERM,  1873.  263 


Wolcott,  Johnson  &  Co.  v.  Mount. 


On  the  trial  of  the  appeal,  Mount,  the  appellee  and  plain- 
tiff before  the  justice,  proved  that  Wolcott,  Johnson  &  Co. 
were  merchants,  keeping  a  store  of  general  merchandise,  in 
the  county  of  Monmouth,  and  that,  among  other  articles^ 
they  advertised  and  kept  agricultural  seeds  for  sale,  and  sold 
seeds.  Mount  went  to  their  store  and  asked  one  of  the  part- 
ners, Bloomfield  Wolcott,  for  early  strap-leaf  red-top  turnip 
seed,  and  Wolcott  showed  him,  and  sold  to  him,  seed  which 
Wolcott  told  him  was  early  strap-leaf  red-top  turnip  seed,, 
and  sold  it  to  Mount  (two  pounds)  as  such,  and  Mount  paid 
him  cents  for  the  same.     Mount  sowed  the  same 

on  acres  of  his  ground,  which  he  had  prepared 

.  with  care  and  great  expense  for  the  purpose.  Mount  had 
been  in  the  habit,  year  after  year,  to  sow  early  strap-leaf  red- 
top  turnip  seed,  to  produce  turnips  for  the  early  New  York 
market,  such  kind  and  description  of  turnips  yielding  a  large 
profit,  and  he,  at  time  of  purchase,  stated  that  he  wished  this 
description  and  kind  of  seed  for  that  purpose. 

The  seed  sold  to  Mount  by  Wolcott  was  sown  upon  the 
ground  prepared  for  same  by  Mount,  and  the  turnips  pro- 
duced therefrom  were  not  early  strap-leaf  red-top  turnips, 
but  turnips  of  a  different  kind  and  description,  to  wit^ 
Russia,  late,  and  not  salable  in  market,  and  only  fit  for 
cattle,  and  he  lost  his  entire  crop.  The  plaintiff  proved  that 
the  seed  sold  him  by  Wolcott  was  not  early  strap-leaf  red- 
top  turnip  seed,  but  seed  of  a  different  kind  and  description, 
to  wit,  Russia  turnip  seed,  and  that  it  produced  no  profit  to 
him,  and  that  early  strap-leaf  red-top  turnip  seed  on  same 
ground  in  other  years  had  produced  large  profits  to  Mount, 
and  on  adjoining  ground,  prepared  in  same  way,  the  same 
year,  had  produced  great  profits  to  the  owner,  and  that 
Mount  was  damaged  thereby. 

It  is  agreed  that  Wolcott  did  not  know  that  the  seed  he 
sold  Mount  was  not  early  strap-leaf  red-top  turnip  seed,  and 
.that  he  did  not  sell  the  seed  to  him  fraudently,  the  said 
Wolcott  having  purchased  the  seed  for  early  strap-leaf  red- 
top  turnip  seed.     It  is  also  agreed  that  this  kind  of  turnip  seed 


264         NEW  JERSEY  SUPREME  COURT. 

Wolcott,  Johnson  <&  Ck),  v.  Mount. 

•cannot  be  known  anjl  distinguished,  by  the  examination 
througli  sight  or  touch,  from  Russia  or  other  kinds,  but  only 
by  the  kind  of  turnips  it  produces  after  sowing,  can  it  be 
known. 

The  Court  of  Common  Pleas  gave  judgment  for  the  plain- 
tiff below  for  $99.12  damages. 

Argued  at  February  Term,  1873,  before  Justices  Bedle, 
Dalrimple  and  Depue. 

For  the  plaintiff  in  certiorari,  H,  G.  Clayton. 

For  the  defendant,  B.  Gummere. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  The  action  in  this  case  was  brought  on  a  con- 
tract of  warranty  and  resulted  in  a  judgment  against  the  de- 
fendants in  the  action  for  damages. 

Two  exceptions  to  the  proceediags  are  presented  by  the 
brief  snbmitted.  The  first  touches  the  right  of  the  plaintiflF 
to  recover  at  all.     The  second  the  measure  of  damages. 

In  the  absence  of  fraud  or  a  warranty  of  the  quality  of  an 
article,  the  maxim,  caveat  gmp^or,  applies.  As  a  general  rule, 
no  warranty  of  the  goodness  of  an  article  will  be  implied  on 
a  contract  of  sale. 

It  has  been  held  by  the  courts  of  New  York,  that  no  war- 
ranty whatever  would  arise  from  a  description  of  the  article 
sold.  Seixas  v.  Woods,  2  Caines  48 ;  Snell  v.  Moses,  1  Johns. 
96;  Sweet  v.  Colgate,  20  Johns.  196.  In  these  cases  the  de- 
fect was  not  in  the  quality,  but  the  article  delivered  was  not 
of  the  species  described  in  the  contract  of  sale. 

In  the  well  known  case  of  Chandelor  v.  Lopus,  Cro.  Jac. 
4,  it  was  decided  that  a  bare  affirmation  that  a  stone  sold  was 
a  bezoar  stone,  when  it  was  not,  was  no  cause  of  action. 

The  cases  cited  fairly  present  the  negative  of  the  proposi- 
tion on  which  the  plaintiff's  right  of  action  depends.  Chan- 
delor V.  Lopus  was  decided  on  the  distinction  between  actions 
on  the  case  in  tort  for  a  misrepresentation,  in  which  a  scienter 


JUXE  TERM,  1873.  265 

Wolcott,  Jo'hnson  &  Co.  v.  Mount. 

must  be  averred  and  proved  and  actions  upon  the  contract  of 
warranty.  1  Smith's  Lead.  Cas.  283.  Chancellor  Kent,  who' 
delivered  the  opinion  in  Seixas  v.  Woods,  in  his  Commenta- 
ries, expresses  a  doubt  whether  the  maxim,  caveat  emptor,  wa& 
correctly  applied  in  that  case,  inasmuch  as  there  was  a  de- 
scription in  writing  of  the  article  sold,  from  which  a  war- 
ranty might  have  been  inferred.  2  Kent  479.  And  in  a 
recent  case  before  the  Commission  of  Appeals  of  New  York, 
Earl,  C,  declared  that  Seixas  v.  Woods  had  been  much  ques- 
tioned and  could  no  longer  be  regarded  as  authority  on  the 
precise  point.  Hawkins  v.  Pembe^ion,  51  N.  Y.  204.  In 
the  later  English  cases  some  criticism  has  been  made  upon 
the  application  of  the  term  warranty  to  representations  in 
contracts  of  sale,  descriptive  of  articles  which  are  known  in 
the  market  by  such  description,  per  Lord  Abinger  in  Chanter 
v.  Hopkins,  4  II.  &  W.  404 ;  per  Erie,  C.  J.,  in  Bannerm,an 
v.  White,  10. C.  B.  {N.  S.)  844.  But  in  a  number  of  instan- 
ces it  has  been  held  that  statements  descriptive  of  the  subject 
matter,  if  intended  as  a  substantive  part  of  the  contract,  will 
be  regarded  in  the  first  instance  as  conditions,  on  the  failure 
of  which  the  other  party  may  repudiate  in  toto,  by  a  refusal 
to  accept  or  a  return  of  the  article,  if  that  be  practicable,  or 
if  part  of  the  consideration  has  been  received,  and  rescission 
therefor  has  become  impossible,  such  representations  change 
their  character  as  conditions  and  become  warranties,  for  the 
breach  of  which  an  action  will  lie  to  recover  damages.  The 
rule  of  law  is  thus  stated  by  Williams,  J.,  in  Behn  v.  Bur- 
ness,  as  established  on  principle  and  sustained  by  authority,  3 
B.  &  S.  755. 

In  Bridge  v.  Wain,  1  Starkie  504,  no  special  warranty  was 
proved,  but  the  goods  were  described  as  scarlet  cuttings,  an 
article  kaown  in  the  market  as  peculiar  to  the  China  trade. 
In  an  action  for  breach  of  warranty,  Lord  EUenborough 
held  that  if  the  goods  were  sold  by  the  name  of  scarlet  cut- 
tings, and  were  so  described  in  the  invoice,  an  undertaking 
that  they  were  such  must  be  inferred.  In  Allan  v.  Lake,  IS 
Q.  B.  560,  the  defendant  sold   to    the    plaintiff  a  crop  of 


266  NEW  JERSEY  SUPREME  COURT. 


Wi»lcott,  Johnson  &  Co.  v.  Mount. 


turnips,  described  in  the  sold  note  asSkirving's  Sweedes,  The 
seed  having  been  sown,  it  tu-rned  out  that  the  greater  part 
was  not  of  that  kind,  but  of  an  inferior  kind.  It  was  held 
that  the  statement  that  the  seeds  were  Skirving's  Sweedes,  was 
a  description  of  a  known  article  of  trade  and  a  warranty. 
In  Jodlng  v.  Kingsjord,  13  C.  B.  {N.  S.)  447,  the  purchaser 
•recovered  damages  upon  a  contract  for  the  sale  of  oxalic  acid, 
where  the  jury  found  that  the  article  delivered  did  not,  in  a 
commercial  sense,  come  properly  within  the  description  of 
oxalic  acid,  though  the  vendor  was  not  the  manufacturer,  and 
the  vendee  had  an  opportunity  of  inspection,  (the  defect  not 
being  discoverable  by  inspection,)  and  no  fraud  was  suggested. 
In  Wieler  v.  Schillizzi,  17  C.  B.  619,  the  sale  was  of  "Cal- 
cutta linseed."  The  goods  had  been  delivered,  and  the  action 
was  in  form  on  the  warranty  implied  from  the  description. 
The  jury  having  found  that  the  article  delivered  had  lost  its 
distinctive  character  as  Calcutta  linseed,  by  reason  of  the 
admixture  of  a  foreign  substance,  the  plaintiff  recovered  his 
damages  upon  the  warranty. 

The  doctrine  that  on  the  sale  of  a  chattel  as  being  of  a  par- 
ticular kind  or  description,  a  contract  is  implied  that  the  article 
sold  is  of  that  kind  or  description,  is  also  sustained  by  the 
following  English  cases :  Powell  v.  Horton,  2  Bing.  N.  S. 
6QS  ;  Barr  v.  Gibson,  3  M.  &  W.  390 ;  Chanter  v.  Hoj^kins, 
4  M.  &  W.  399 ;  Nichol  v.  Godts,  10  Exch.  191 ;  Gompertz  v. 
Bartlett,  2  E.  &  B.  849 ;  Azemar  v.  aisella,  Law  Rep.,  2  C. 
P.  431,  677;  and  has  been  approved  by  some  decisions  in  the 
<:ourts  of  this  country.  Henshaw  v.  Robins,  9  3Ietc.  83 ;  Bor- 
rekins  v.  Bevan,  3  Raiole  23 ;  Osgood  v.  Lewis,  2  Harr.  & 
Gill  495;  Hawkins  v.  Pemberton,  51  N.  Y.  198. 

The  right  to  repudiate  the  purchase  for  the  non-conformity 
•of  the  article  delivered,  to  the  description  under  which  it  was 
sold,  is  universally  conceded.  That  right  is  founded  on  the 
engagement  of  the  vendor,  by  such  description,  that  the  arti- 
cle delivered  shall  correspond  with  the  description.  The 
obligation  rests  upon  the  contract.     Substantially,  the  de- 


JUNE  TERM,  1873.  267 

Wolcott,  Johnson  &  Co.  v.  Mount. 

scription  is  warranted.  It  will  comport  with  sound  legal 
principles  to  treat  such  engagements  as  conditions  in  order  to 
afford  the  purchaser  a  more  enlarged  remedy,  by  rescission, 
than  he  would  have  on  a  simple  warranty ;  but  when  his 
situation  has  been  changed,  and  the  remedy,  by  repudiation, 
has  become  impossible,  no  reason  supported  by  principle  can 
be  adduced,  why  he  should  not  have  upon  his  contract  such 
redress  as  is  practicable  under  the  circumstances.  In  that 
situation  of  affairs,  the  only  available  means  of  redress  is  by 
an  action  for  damages.  Whether  the  action  shall  be  techni- 
cally considered  an  action  on  a  warranty,  or  an  action  for  the 
non-performance  of  a  contract,  is  entirely  immaterial. 

The  contract  which  arises  from  the  description  of  an  arti- 
cle on  a  sale  by  a  dealer  not  being  the  manufacturer,  is  not 
in  all  respects  co-extensive  witli  that  which  is  sometimes 
implied,  where  the  vendor  is  the  manufacturer,  and  the  goods 
are  ordered  by  a  particular  description,  or  for  a  specified  pur- 
pose, without  opportunity  for  inspection,  in  which  case,  a 
warranty,  under  some  circumstances,  is  implied  that  the 
goods  shall  be  merchantable,  or  reasonably  tit  for  the  purpose 
for  which  they  were  ordered.  In  general,  the  only  contract 
whicii  arises  on  the  sale  of  an  article  by  a  description,  by  its 
tnown  designation  in  the  market,  is  that  it  is  of  the  kind 
specified.  If  the  article  corresponds  with  that  description, 
no  warranty  is  implied  that  it  shall  answer  the  particular 
purpose  in  view  of  which  the  purchase  was  made.  Chanter 
v.  Hopkins,  4  M.  &  W.  414  ;  OUivant  v.  Bayley,  5  Q.  B.  2S8  ; 
Windsor  v.  Lombard,  18  Pick.  55  ;  Mixer  v.  Coburn,  11 
Mete.  559;  Gossler  v.  Eagle,  &e.,  Co.,  103  Mass.  331.  The 
cases  on  this  subject,  so  productive  of  judicial  discussion,  are 
classified  by  Justice  Mellor,  in  Jones  v.  Just,  Laio  Rep.,  3  Q. 
B.  197.  Nor  can  any  distinction  be  maintained  between 
statements  of  this  character  in  written  and  in  oral  contracts. 
The  arguments  founded  on  an  apprehension  that  where  the 
contract  is  oral,  loose  expressions  of  judgment  or  opinion 
pending  the  negotiations,  might  be  regarded  as  embodied  in 
the  contract,  contrary  to  the  intentions  of  parties,  is  without 


268  NEW  JERSEY  SUPREME  COURT. 

Wolcott,  Johnson  &  Co.  v.  Mount. 

reasonable  foundation.  It  is  always  a  question  of  construc- 
tion or  of  fact,  whether  sucli  statements  were  the  expression  of 
a  mere  matter  of  opinion,  or  were  intended  to  be  a  substan- 
tive part  of  the  contract,  when  conchided.  If  the  contract  is 
in  writing,  the  question  is  one  of  construction  for  the  court. 
Behn  v.  Burmvis,  S  B.  &  S.  751.  If  it  be  concluded  by 
parol,  it  will  be  for  the  determination  of  the  jury,  from  the 
nature  of  the  sale,  and  the  circumstances  of  each  particular 
case,  whether  the  language  used  was  an  expression  of  opinion, 
merely,  leaving  the  buyer  to  exercise  his  own  judgment,  or 
whether  it  was  intended  and  understood  to  be  an  undertaking 
which  was  a  contract  on  the  part  of  the  seller.  Lomi  v. 
Tucker,  4  0.  &  P.  15  ;  De  Sewhanherg  v.  Buchanan,  5  C.  & 
P.  343  ;  Power  v.  Barham,  4  A.  &  E.  473.  In  the  case 
last  cited,  the  vendor  sold  by  a  bill  of  parcels,  "  four  pictures, 
views  in  Venice — Canaletto ; "  it  was  held  that  it  was  for 
the  jury  to  say,  under  all  the  circumstances,  what  was  the 
eifect  of  the  words,  and  whether  they  implied  a  warranty  of 
genuineness,  or  conveyed  only  a  description  or  an  expression 
of  opinion,  and  that  the  bill  of  parcels  was  properly  laid  be- 
fore the  jury  with  the  rest  of  the  evidence. 

The  purchaser  may  contract  for  a  specific  article,  as  well 
as  for  a  particular  quality,  and  if  the  seller  makes  such  a 
contract,  he  is  bound  by  it.  The  state  of  the  case  pre- 
sented shows  that  the  plaintiff  inquired  for  seed  of  a  desig- 
nated kind,  and  informed  the  defendants  that  he  wanted  it  to 
raise  a  crop  for  the  New  York  market.  The  defendants 
showed  him  the  seed,  and  told  him  it  was  the  kind  he  in- 
quired for,  and  sold  it  to  him  as  such.  The  inspection  and  ex- 
amination of  the  seed  were  of  no  service  to  the  plaintiiF.  The 
facts  and  circumstances  attending  the  transaction  were  before 
the  court  below,  and  from  the  evidence,  it  decided  that  the 
proof  was  sufficient  to  establish  a  contract  of  warranty.  The 
evidence  tended  to  support  that  conclusion,  and  this  court 
cannot,  on  certiorari,  review  the  finding  of  the  court  below, 
on  a  question  of  fact,  where  there  is  evidence  from  which  the 
conclusion  arrived  at  may  be  lawfully  inferred. 


JUNE  TERM,  1873.  269 

Wolcott,  Johnson  &  Co.  v.  Mount. 

The  second  reason  for  reversal  is,  that  the  court  was  ia 
error  in  the  damages  awarded.  The  judgment  was  for  con- 
sequential damages. 

The  contention  of  the  defendants'  counsel  was,  that  the 
damages  recoverable  should  have  been  limited  to  the  price 
paid  for  the  seed,  and  that  all  damages  beyond  a  restitution 
of  the  consideration,  were  too  speculative  and  remote  to  come 
within  the  rules  for  measuring  damages.  As  the  market 
price  of  the  seed  which  the  plaintiff  got,  and  had  the  benefit 
of  in  a  crop,  though  of  an  inferior  quality,  was  probably  the 
same  as  the  market  price  of  the  seed  ordered,  the  defendants^ 
rule  of  damages  would  leave  the  plaintiff  remediless. 

The  earlier  cases,  both  in  English  and  American  courts^ 
generally  concurred  in  excluding,  as  well  in  actions  in  tort  as 
in  actions  on  contracts,  from  the  damages  recoverable,  profits 
which  might  have  been  realized  if  the  injury  had  not  beeu 
done,  or  the  contract  had  been  performed.     Sedg.  on  Dam.  69. 

This  abridgment  of  the  power  of  courts  to  award  compen- 
sation adequate  to  the  injury  suffered,  has  been  removed  in 
actions  of  tort.  The  wrong  doer  must  answer  in  damages 
for  those  results  injurious  to  other  parties,  which  are  pre- 
sumed to  have  been  within  his  contemplation  when  the  wrong 
was  done.  Binninger  v.  Or-ater,  4  Vroom  513.  Thus,  in  aa 
action  to  recover  damages  for  personal  injuries  caused  by  the 
negligence  of  the  defendant,  the  plaintiff  was  held  to  be 
entitled  to  recover  as  damages  the  loss  he  sustained  in  -his 
profession  as  an  architect,  by  reason  of  his  being  incapacitated 
from  pursuing  his  business.  New  Jersey.  Express  Co.  v. 
Nichols,  4  Vroom  435. 

A  similar  relaxation  of  this  restrictive  rule  has  been  made 
at  least  to  a  qualified  extent,  in  action  on  contracts,  and  loss 
of  profits  resulting  naturally  from  the  breach  of  the  contract, 
has  been  allowed  to  enter  into  the  damages  recoverable  where 
the  profits  that  might  have  been  realized  from  the  perform- 
ance of  the  contract,  are  capable  of  being  estimated  with  a 

Vol.  VII.  17 


270  NE\y  JERSEY  SUPREME  COURT. 

Wolcott,  Johnson  &  Co.  v.  Mount. 

reasonable  degree  of  certainty.  In  an  action  on  a  warranty 
of  goods  adapted  to  the  China  marjict,  and  purchased  with  a 
view  to  that  trade,  the  purchaser  was  aUowed  damages  with 
reference  to  their  value  in  China,  as  representing  the  benefit 
he  would  have  received  from  the  contract,  if  the  defendant 
had  performed  it.  Bridge  v.  Wain,  1  Starkie  504.  On  an 
executory  contract  put  an  end  to  by  the  refusal  of  the  one 
party  to  complete  it,  for  such  breach  the  other  party  may 
recover  such  profits  as  would  have  accrued  to  him  as  the 
direct  and  immediate  result  of  the  jjerformance  of  the  con- 
•triict.  Fox  V.  Harding,  7  Cash.  516;  Mastertonw.  Mayor 
of  Brooldyn,  7  Hill  01.  In  an  action  against  the  charterer 
of  a  vessel  for  not  loading  a  cargo,  the  freight  she  would 
have  earned  under  the  charter  party,  less  expenses  and  the 
freight  actually  received  for  services  during  tiie  period  over 
which  the  charter  extended,  was  held  to  be  the  proper  measure 
of  damages.     Smith  v.  McGuire,  3  H.  &  N.  554. 

In  the  cases  of  the  class  from  which  these  citations  have 
been  made,  and  they  are  quite  numerous,  the  damages  arising 
irom  loss  of  profits  were  such  as  resulted  directly  from  non- 
performance, and  in  the  ordinary  course  of  business,  would 
be  expected  as  a  necessary  consequence  of  the  breach  of  the 
■contract.  In  the  two  cases  cited  of  Fox  v..  Harding,  and 
Masterton  v.  Mayor  of  Brooklyn,  it  was  said  that  the  profits 
that  might  have  been  realized  from  independent  and  collateral 
engagements,  entered  into  on  the  faith  of  the  principal  con- 
tract, were  too  remote  to  be  taken  into  consideration.  This 
latter  qualification  would  exclude  compensation  for  the  loss 
of  the  profits  of  a  resale  by  the  vendee  of  the  goods  pur- 
chased, made  upon  the  faith  of  his  expectation,  that  his  con- 
tract with  his  vendor  would  be  performed. 

In  the  much  canvassed  case  of  Hadley  v.  Baxendale,  9 
Exch.  341,  Alderson,  B.,  in  pronouncing  the  judgment  of  the 
court,  enunciated  certain  principles  on  which  damages  should 
be  awarded  for  breaches  of  contracts  which  assimilated  dam- 
ages in  actions  on  contract  to  actions  in  tort.  The  rule  there 
a.dopted  as  resting  on  the  foundation  of  correct  legal  princi- 


JUNE  TERM,  1873.  271 

Wolcott,  Johnson  &  Co.  v.  Mount. 

pies  was,  that  the  damages  recoverable  for  a  breach  of  con- 
tract, were  either  such  as  might  be  considered  as  arising 
naturally,  i.  e.,  according  to  the  usual  course  of  things,  from 
the  breach  of  the  contract  itself;  or  such  as  might  reasonably 
be  supposed  to  have  been  in  the  contemplation  of  both  par- 
ties at  the  time  they  made  the  contract,  as  the  probable  results 
of  the  breach  of  it ;  and  that  when  the  contract  is  made  under 
special  circumstances,  if  those  special  circumstances  are  com- 
municated, the  amount  of  injury  which  would  ordinarily 
follow  from  a  breach  of  the  contract,  under  such  circumstan- 
ces, may  be  recovered  as  damages  that  would  reasonably  be 
expected  to  result  from  such  breach.  The  latter  branch  of 
this  rule  was  considered  by  Blackburn,  J.,  and  Martin,  B.,  as 
analogous  to  an  agreement  to  bear  the  loss  resulting  from 
the  exceptional  state  of  things,  made  part  of  the  principal 
contract,  by  the  fact  that  such  special  circumstances  were 
communicated,  with  reference  to  which  the  parties  may  be 
said  to  have  contracted.  Home  v.  The  Midland  Railway 
Company,  Law  Rep.,  8  C.  P.  134-140.  Under  the  opera- 
tion of  this  rule,  damages  arising  from  the  loss  of  a  profitable 
sale,  or  the  deprivation  for  a  contemplated  use,  have  been 
allowed  when  special  circumstances  of  such  sale  or  proposed 
use  were  communicated  contemporaneously  with  the  making 
of  the  contract;  and  have  been  denied  when  such  communi- 
cation was  not  made  so  specially,  as  that  the  other  party  was 
made  aware  of  the  consequences  that  would  follow  from  his 
non-performance.  Borries  v.  Hutchinson,  18  C.  B.  {N.  S) 
445 ;  Co)-y  v.  Thames  Ironworks  Co  ,  Laiv  Rep.,  3  Q.  B.181  ; 
Home  V.  The  Midland  Railway  Co.,  L.  R  ,  8  C.  P.  134 ; 
Benjamin  on  Sales  665-671. 

It  must  not  be  supposed  that  under  the  principle  of  Had- 
ley  V.  Baxendale  mere  speculative  profits,  such  as  might  be 
conjectured  to  have  be^n  the  probable  results  of  an  adventure 
which  was  defeated  by  the  breach  of  the  contract  sued  on,  the 
gains  from  which  are  entirely  conjectural,  with  respect  to 
which  no  means  exist  of  ascertaining,  even  approximately, 
the  probable  results,  can,  under  any  circumstances,  be  brought 


272  NEW  JERSEY  SUPREME  COURT. 

Wolcott,  Johnson  &  Co.  v.  Mount. 

within  the  range  of  damages  recoverable.  The  cardinal' 
principle  in  relation  to  the  damages  to  be  compensated  for  on 
the  breach  of  a  contract,  that  the  plaintiff  must  establish  the 
quantum  of  his  loss,  by  evidence  from  which  the  jury  will  be 
able  to  estimate  the  extent  of  his  injury,  will  exclude  all  such 
elements  of  injury  as  are  incapable  of  being  ascertained  by 
the  usual  rules  of  evidence  to  a  reasonable  degree  of  cer- 
tainty. 

For  instance,  profits  expected  to  be  made  from  a  whaling 
voyage,  the  gains  from  which  depend  in  a  great  measure  upon 
chance,  are  too  purely  conjectural  to  be  capable  of  entering  into 
compensation  for  the  non- performance  of  a  contract,  by  reason 
of  which  the  adventure  was  defeated.  For  a  similar  reason,  the 
loss  of  the  value  of  a  crop  for  which  the  seed  had  not  been 
sown,  the  yield  from  which,  if  planted,  would  depend  upon 
the  contingencies  of  weather  and  season,  would  be  excluded 
as  incapable  of  estimation,  with  that  degree  of  certainty 
which  the  law  exacts  in  the  proof  of  damages.  But  if  the 
vessel  is  under  charter,  or  engaged  in  a  trade,  the  earnings  of 
which  can  be  ascertained  by  reference  to  the  usual  schedule 
of  freights  in  the  market,  or  if  a  crop  has  been  sowed  on  the 
ground  prepared  for  cultivation,  and  the  plaintiff's  complaint 
is,  that  because  of  the  inferior  quality  of  the  seed  a  crop  of 
less  value  is  produced,  by  these  circumstances  the  means 
would  be  furnished  to  enable  the  jury  to  make  a  proper  esti- 
mation of  the  injury  resulting  from  the  loss  of  profits  of  this 
character. 

In  this  case  the  defendants  had  express  notice  of  the  in- 
tended use  of  the  seed.  Indeed,  the  fact  of  the  sale  of  seeds 
by  a  dealer  keeping  them  for  sale  for  gardening  purposes,  to 
a  purchaser  engaged  in  that  business,  would  of  itself  imply 
knowledge  of  the  use  which  was  intended,  sufficient  to  amount 
to  notice.  The  ground  was  prepared  and  sowed,  and  a  crop 
produced.  The  uncertainty  of  the  quantity  of  the  crop, 
dependent  upon  the  condition  of  weather  and  season,  was 
removed  by  the  yield  of  the  ground  under  the  precise  circum- 
stances to  which  the  seed  ordered  would  have  been  exposed^ 


JUNE  TERM,  1873.  273 

Kader  v.  Southeastenly  Road  District  of  Township  of  Union. 

The  difference  between  the  market  value  of  the  crop  raised, 
and  the  same  crop  from  the  seed  ordered,  would  be  the  cor- 
rect criterion  of  the  extent  of  the  loss.  Compensation  on  that 
basis  may  be  recovered  in  damages  for  the  injury  sustained  as 
the  natural  consequence  of  the  breach  of  the  contract.  Ran- 
dall V.  Eaper,  E.,  B.  &  E.  84 ;  Lovegrove  v.  Fisher ^  1  F.  & 
F.  128. 

From  the  state  of  the  case,  it  must  be  presumed  that  the 
court  below  adopted  this  rule  as  the  measure  of  damages,  and 
the  judgment  should  be  affirmed. 

Judgment  affirmed,  9  Yr.  496. 

Cited  in  McAndrews.  v.  Tippet,  10  Vr.  105 ;  Appleby  v.  State,  16  Vr.  161. 


GEORGE  W.  RADER  v.  THE  SOUTHEASTERLY  ROAD  DIS- 
TRICT OF  THE  TOWNSHIP  OF  UNION,  IN  THE  COUNTY 
OF  UNION. 

1.  The  power  of  the  legislature  over  corporations  created  for  purposes 
of  local  government,  is  supreme.  The  legislature  may  alter  or  repeal 
the  charter  at  any  time,  in  its  discretion.  The  only  limitation  on  the 
operation  of  such  repeal  is  as  to  creditors,  that  it  shall  not  operate  to 
impair  the  obligation  of  existing  contracts,  or  deprive  them  of  any 
remedy  for  enforcing  such  contracts  that  existed  when  they  were  made. 

2.  Any  legislation,  the  effect  of  which  is  to  deprive  a  party  of  the  power 
to  resort  to  the  person  or  asy  property  which,  as  the  law  was  when 
the  contract  was  made,  might  have  been  taken  or  applied  in  satisfac- 
tion of  his  demand,  is  within  the  prohibition  of  paragraph  3,  section 
7,  Article  IV,  of  the  Constitution  of  New  Jersey,  which  prohibits  the 
legislature  from  passing  any  law  "  depriving  a  party  of  any  remedy 
for  enforcing  a  contract  which  existed  when  the  contract  was  made." 
But  the  legislature  may  make  laws  incidentally  affecting  the  pursuit 
of  remedies  for  enforcing  existing  contracts,  such  as  regulating  the 
admission  of  evidence,  the  course  of  practice,  and  similar  acts,  alter- 
ing in  mere  matters  of  form  the  means  of  realizing  the  benefits  of  a 
contract,  leaving  the  substance  of  the  remedy  unaffected. 

3.  The  right  to  recover  costs  is  no  part  of  the  remedy  which  inheres  in 
the  contract.  That  right  is  purely  incidental,  and  depends  on  the 
Btate  of  the  law  when  the  suit  is  determined.  Until  judgment  pro- 
nounced, the  right  to  costs  does  not  become  vested.    The  legislature 


274  NEW  JERSEY  SUPREME  COURT. 

Eader  v.  Southeasterly  Road  District  of  Township  of  Union. 

may,  after  contract  made  and  even  pending  suit  on  it,  constitutionally- 
pass  laws  which  change  the  costs  recoverable,  or  deprive  the  party  of 
costs. 
4.  In  1871  a  portion  of  the  township  of  Union  was  created  a  separate 
corporation,  for  the  purpose  of  laying  out,  opening,  and  improving 
streets.  The  work  was  to  be  executed  under  tlie  supervision  of  com- 
missioners, wlio  were  authorized  to  borrow  money  and  issue  bonds  of 
the  corporation,  and  to  cause  assessments  to  be  made  on  lands  bene- 
fited, to  defray  the  expenses.  In  1872  the  act  of  incorporation  was 
repealed.  By  the  repealing  act  it  was  provided,  that  the  repeal  should 
not  affect  or  impair  any  legal  contract  of  the  commissioners,  or  any 
indebtedness  contracted  for  improvements,  and  the  township  com- 
mittee of  the  township  of  U.  was  authorized  to  compromise  or  com- 
plete such  contracts,  and  to  issue  township  bonds  to  provide  funds 
therefor,  and  to  make  and  collect  assessments  to  pay  expenses,  in  the 
same  manner  as  the  commissioners  had  been  empowered — Held,  that 
the  repealing  act  was  constitutional,  as  affecting  a  creditor  who  had 
furnished  supplies  to  the  commissioners  before  the  repeal,  although 
an  action  for  the  same  was  pending  when  the  repealer  became  a  law. 


On  demurrer  to  plea. 

The  defendants  were  created  a  corporation  for  the  purpose 
of  laying  out,  opening,  and  improving  streets,  roads,  highways, 
and  public  parks,  within  prescribed  limits,  by  an  act  of  the 
legislature,  entitled  an  act  in  relation  to  streets  in  Union 
township,  in  Union  county,  passed  on  the  29th  of  March, 
1871.  Acts,  1871,  p.  1034.  The  execution  of  the  work  was 
to  be  under  the  supervision  of  five  commissioners,  called 
commissioners  of  public  roads,  who  were  authorized  to  borrow 
money  and  issue  bonds  of  the  corporation,  to  defray  the  ex- 
penses of  the  improvement,  and  to  cause  assessments  to  pay 
the  same,  to  be  made  on  lands  benefited.  The  plaintiff  fur- 
nished certain  supplies  for  the  construction  of  sewers,  and  on 
the  14th  of  February,  1872,  brought  this  action  for  tiie  same. 
Pending  the  suit,  the  legislature,  by  an  act  passed  on  the  1st 
of  April,  1872,  repealed  the  act  incorporating  the  defendants, 
but  provided  that  the  repeal  should  not  in  any  way  affect  or 
impair  any  legal  contract  which  the  commissioners  named  in 
the  first  act  had  made,  and  which  remained  unexecuted  in. 


JUNE  TERM,  1873.  275 

Eader  v.  Southeasterly  Road  District  of  Township  of  Union. 

whole  or  in  part,  or  any  indebtedness  contracted  for  improve- 
ments under  the  original  act,  and  the  township  committee  of 
the  township  of  Union  were  empowered  to  compromise  and 
settle  with  the  contractors,  or  to  carry  out  and  complete  such 
legal  contracts  by  the  commissioners  under  the  original  act, 
and  were  authorized  to  issue  bonds  of  the  township  to  provide 
funds  for  that  purpose,  and  to  make  and  collect  assessments 
necessary  for  the  payment  of  the  expenses  of  completing  and 
carrying  out  the  contracts  of  the  commissioners,  in  the  same 
manner  as  the  commissioners  were  entitled  to  under  the 
original  act.     Acts,  1872,  p.  973. 

The  defendants  pleaded  the  repealing  act,  and  averred  that 
thereby  ''  the  township  committee  of  the  township  of  Union, 
in  the  county  of  Union,  are  required  to  pay  all  just  debts  con- 
tracted by  the  said  commissioners  of  the  said  district  for 
improvements,  under  the  said  act  first  above  mentioned, 
whereby,  and  by  force  whereof,  the  debts  contracted  by  the 
said  commissioners  of  said  district  for  said  improvements,  of 
which  the  said  plaintiff's  debt  is  one  as  aforesaid,  are  charge- 
able to,  and  payable  solely  by  the  said  township  committee  of 
the  township  of  Union,  and  no  action  can  be  had  or  main- 
tained against  this  defendant  corporation  therefor." 

Argued  at  February  Term,  1873,  before  Beasley,  Chief 
Justice,  and  Justices  Bedle,  Dalrimple  and  Depue. 

For  the  plaintiff,  R.  S.  Green. 

For  the  defendants,  /.  M.  English  and  B.  Williamson. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  To  this  plea  of  the  defendants,  a  demurrer  was 
filed.  The  question  discussed  on  the  argument  was,  whether 
the  act  of  1872  affects  the  claim  of  the  plaintiff,  and  deprives 
him  of  his  suit. 

The  contract  was  made  with  the  commissioners,  and  the 


276  NEW  JERSEY  SUPREME  COURT. 

Raler  v.  Southeasterly  Road  District  of  Township  of  Union. 

goods  for  which  the  suit  was  brought  were  delivered,  and  the 
action  commenced  before  the  passage  of  the  act  of  1872. 

It  is  insisted  that  the  repealing  act  is,  with  respect  to  con- 
tracts made  before  it  was  passed,  unconstitutional,  in  that  it 
impairs  the  obligation  of  a  contract,  and  deprives  the  plaintiff 
of  a  remedy  for  enforcing  his  contract,  which  existed  when 
the  contract  was  made.      Const.  N.  J.,  Art.  I V,  Sec.  7,  ^  3. 

The  power  of  the  legislature  over  corporations  created  for 
purposes  of  local  government,  is  supreme.  From  a  grant  of 
this  character,  uo  contract  arises  with  the  corporators  which 
exempts  it  from  legislative  control.  The  legislature  may  alter, 
modify,  or  repeal  the  charter  at  any  time,  in  its  discretion. 
The  only  limitation  on  the  operation  of  such  repeal  is  as  to 
creditors,  that  it  shall  not  operate  to  impair  the  obligation  of 
existing  contracts,  or  deprive  them  of  any  remedy  for  enforcing 
such  contracts  which  existed  when  they  were  made.  The 
People  v.  Morris,  13  Wend.  325;  The  State  v.  Brannin,  3 
Zab.  484 ;  City  of  Paterson  v.  The  Society,  &c.,  4  Zab.  386 ; 
Von  Hoffman  v.  The  City  of  Quincy,  4  Wall.  535 ;  Butz  v. 
City  of  Muscatine,  8  Wall.  575 ;  Dillon  on  Municipal  Corp., 
§§36,114. 

In  construing  that  clause  of  the  constitution  of  the  United 
States,  which  prohibits  the  states  from  enacting  any  law  im- 
pairing the  obligation  of  contracts,  the  courts  made  a  distinc- 
tion between  the  obligation  of  a  contract  and  the  remedy 
upon  it.  Whilst  the  former  was  under  the  protection  of  the 
constitutional  prohibition,  it  was  considered  that  the  reme- 
dies for  enforcing  existing  contracts  were  under  the  control  of 
the  state  legislatures,  and  might  be  modified  and  changed  in 
their  nature  and  extent,  provided  a  substantive  remedy  be 
left.  2  Story  on  Const,  §  1385 ;  Cooky  on  Const.  Lim.  287. 
It  was  accordingly  held,  that  laws  abolishing  imprisonment 
for  debt,  or  exempting  a  portion  of  a  debtor's  property  from 
execution,  or  depriving  the  creditor  of  an  extraordinary  remedy, 
such  as  by  distress,  or  abolishing  priority  of  rent  over, 
executions,  might  constitutionally  be  passed  and  made  appli- 


JUNE  TERM,  1873.  277 

Rader  v.  Southeasterly  Eoad  District  of  Township  of  Union. 

cable  to  prior  contracts,  as  such  statutes  pertained  exclusively 
to  the  remedy.  Sturges  v.  Crowning  shield,  4  Wheat.  1 22  ; 
Ilason  V.  Haile,  1 2  Wheat.  370  ;  Stocking  v.  Hunt,  3  Denio 
274 ;  Morse  v.  Goold,  1  Kernan  282 ;  Van  Rensselaer  v. 
Snyder,  3  lb.  300. 

So,  also,  it  was  held,  that  although  the  repeal  of  an  act  of 
incorporation  dissolved  the  corporation,  and  made  it  incapa- 
ble of  being  sued  in  a  court  of  law,  yet,  inasmuch  as  on  such 
<1issolution,  its  property  and  effects  became  trust  funds  for 
the  payment  of  debts  which  creditors  might  follow  in  equity, 
such  repeal  was  not  unconstitutional,  unless  the  repealing 
statute  appropriated  the  property  to  other  uses,  and  thus  de- 
prived creditors  of  the  power  to  follow  its  assets  in  equity. 
Mumma  v.  Potomac  Co.,  8  Pet.  281  ;  Curran  v.  Arkansas,  15 
How.  524;  Bacon  v.  Robertson,  18  lb.  480. 

Indeed,  as  was  said  by  Mr.  Justice  Swain,  in  Von  Hoff- 
man V.  City  of  Quincy,  "  No  attempt  has  been  made  to  fix, 
definitely,  the  line  between  alterations  of  the  remedy  which 
are  to  be  deemed  legitimate,  and  those  which,  under  the  form 
of  modifying  the  remedy,  impair  substantial  rights ;  every 
case  must  be  determined  upon  its  own  circumstances."  The 
decisions  on  this  subject,  while  they  uniformly  recognize  the 
existence  of  this  distinction,  are  not  harmonious  in  the  appli- 
cation of  it.  In  many  instances,  embarrassment,  if  not 
injustice  to  creditors,  in  the  collection  of  debts,  arose  from 
laws,  modifying  and  taking  away  remedies  which  existed 
when  the  contrast  was  entered  into,  which  also  gave  rise  to 
much  litigation  to  determine  whether  particular  laws  enacted 
for  that  purpose  were  within  legislative  powers. 

This  vexed  question  was  before  the  Supreme  Court  of  the 
United  States,  in  Bronson  v.  Kinzie,  1  How.  311,  and  3Ic- 
Crackin  v.  Hayward,  2  lb.  608.  Chief  Justice  Taney,  in 
pronouncing  judgment  in  the  former  case,  declared  that 
whatever  belonged  merely  to  the  remedy,  might  be  altered 
according  to  the  will  of  the  state,  in  relation  to  past  contracts, 
as  well  as  future,  provided  the  alteration  did  not  impair  the 
•obligation  of  the  contract ;  and  that,  although  the  new 
remedy  might  be  less  convenient  than  the  old  one,  and  in 


278  NEW  JERSEY  SUPREME  COURT. 

Eader  v.  Southeasterly  Road  District  of  Township  of  Union. 

some  degree  render  the  recovery  of  debts  more  tardy  and  dif- 
ficidi,  it  would  not  follow  therefrom  that  the  law  was  uncon- 
stitutional. Among  the  illustrations  of  the  power  of  legisla- 
tures over  the  remedy  on  existing  contracts  used  by  the  Chief 
Justice,  was  the  exemption  of  certain  {)roperty  of  the  debtor 
from  process  of  execution. 

Bronson  v.  Kinzie  was  decided  in  January,  1843,  and  Mc- 
Crackin  v.  Hay  ward  in  January,  1844.  In  June,  1844,  the 
convention  which  framed  our  present  constitution,  assembled. 
In  the  third  paragraph  of  Sec.  7,  Art.  IV.,  of  that  iftstru- 
iiient,  it  was  declared  that,  "the  legislature  shall  not  pass 
any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts,  or  depriving  a  party  of  any  remedy 
for  enforcing  a  contract  which  existed  when  the  contract  was 
made."  The  latter  clause  of  this  paragraph  was  not  in  the 
section  originally  reported,  but  was  added  by  amendment, 
advocated  by  Messrs.  Ryerson.Vroom  and  Green,  and  adopted 
oy  the  decisive  vote  of  36  to  9.  Afterwards,  a  motion  was 
made  to  strike  it  out,  which,  after  discussion,  was  lost  without 
a  division. 

This  provision  is  peculiar  to  the  constitution  of  this  state 
and  is  regarded  as  having  an  important  effect  in  restriction 
of  the  power  of  the  legislature  over  remedies.  Sedg.  on 
Stat,  and  Const.  Law  617,  ?«.  656.  The  only  instances  in 
which  the  construction  of  this  clause  has  received  judicial 
consideration,  are  in  the  cases  of  Martin  v.  The  Somerville 
Water  Power  Co.,  3  Wall.,  Jr.,  C.  C.  R.  206  ;  and  Potts  v.  New 
Jersey  Arms  and  Ordnance  Co.,  2  C.  E.  Green  395.  The 
case  of  Potts  v.  The  Trenton  Water  Power  Co.,  1  Stockt.  592, 
was  decided  on  an  act  passed  before  the  adoption  of  the  pres- 
ent constitution.  In  Martin  v.  The  Somerville  Water  Power 
Co.,  the  facts  were  these  :  The  defendants,  an  incorporated 
com|)any,  in  1848  issued  negotiable  bonds  for  ^50,000,  secured 
by  a  mortgage  on  their  real  estate,  property,  and  franchises. 
One  of  the  conditions  of  the  bonds  was,  that  if  default  should 
be  made  of  the  payment  of  the  $50,000,  or  any  part  thereof 
it  should  be  lawful  for  any  holder  to  enter  upon  the  premises 


JUNE  TERM,  1873.  279 


Eader  v.  Southeasterly  Koad  District  of  Township  of  Union, 

and  to  sell  and  dispose  of  them,  and  of  all  benefit  and  equity 
of  redemption  ;  and  to  make  good  and  sufficient  deeds,  &c. 
The  company  having  become  insolvent,  receivers  were  ap- 
pointed in  chancery,  and  in  1856,  two  acts  of  the  legislature 
were  passed,  which  empowered  the  receiver-s  to  sell  the  real 
estate,  franchises,  and  works  of  the  company,  free  and  clear 
of  all  mortgages,  judgments,  and  other  liens,  and  from  the 
proceeds  to  deduct  a  reasonable  allowance  for  commissions 
and  services  theretofore  rendered  by  them  as  receivers,  and  all 
expenses  incurred  in  effecting  a  sale,  and  the  costs  and  ex- 
penses of  the  chancery  suit,  wherein  they  had  been  appointed 
receivers,  and  to  pay  from  the  residue  all  just  and  lawful  debts 
in  their  order  of  priority.  The  mortgaged  premises  having 
been  sold  by  the  receivers,  and  the  bonds  being  unpaid,  suffi- 
cient money  not  being  realized  from  the  sale  to  pay  them  in 
full,  a  bill  was  filed  in  the  Circuit  Court  of  the  United  States 
to  foreclose  the  mortgage,  and  to  restrain  the  receivers  from 
proceeding  further  under  the  acts  of  the  legislature.  The 
argument  was  upon  the  constitutionality  of  the  acts  of  the 
legislature  authorizing  the  sale,  and  Mr.  Justice  Grier  held 
them  to  be  invalid,  for  the  reason  that  they  impaired  the  obli- 
gation of  the  contract,  in  that  precedence  was  given  to  costs 
and  expenses  not  confined  to  the  costs  of  sale,  and  also  for  the 
reason  that  the  mortgagees  were,  in  violation  of  the  clause 
above  quoted,  deprived  of  a  remedy  which  they  had  by  their 
contract,  to  be  used  at  their  option  and  discretion,  as  to  the 
time  and  mode  of  sale,  and  the  remedy  they  had  by  law,  of 
entry  on  the  premises  and  receipt  of  the  rents  and  profits. 

In  Potts  V.  N.  J.  Arms  and.  Ordnance  Co.,  the  question 
before  the  court  was  the  constitutionality  of  a  supplement  to 
the  act  to  prevent  fraud  in  incorporated  companies,  {Ads, 
]  866,  p.  296,)*  as  affecting  mortgages  and  encumbrances  exist- 
ing before  its  passage.  The  supplement  authorized  receivers 
of  insolvent  corporations  to  sell  the  property  of  such  corpo- 
rations which  was  encumbered  by  mortgages  aud  other  liens, 
which  were  disputed,  clear  of  such  encumbrances,  paying  the 

*Bev.,p.  192,  g  84. 


*280         NEW  JERSEY  SUPREME  COURT. 

Eader  v.  Southeasterly  Road  District  of  Township  of  Union. 

money  into  court,  there  to  remain,  subject  to  the  same  liens 
and  equities  as  the  property  was  before.  The  application  was 
by  the  receivers  for  an  order  to  sell,  and  was  heard  by  Car- 
penter, Master,  who  decided  that  the  act  was  constitutional. 

It  will  be  perceived  that  in  Martin  v.  The  Somerville  Co., 
the  mortgagees  had  two  remedies,  the  one  by  contract,  and 
the  other  by  law.  They  were,  by  the  acts  of  the  legislature, 
•deprived  of  both,  and  the  substituted  remedy  was  subordi- 
nate to  other  demands  which  were  not  entitled  to  precedence 
until  made  so  by  the  legislature.  Enough  money  was  not 
realized  from  the  sale  to  pay  the  mortgages.  The  rights  of 
the  mortgagees  were  materially  and  substantially  prejudiced 
by  the  substitution  of  the  proceeding  provided  for  effecting 
the  sale  in  the  place  of  the  remedies  which  existed  when 
their  contracts  were  made.  In  the  case  cited  from  2  C.  E. 
Green,  it  was  not  suggested  that  the  mortgagees  were  in 
danger  of  losing  any  part  of  their  debts,  or  that  enough 
would  not  be  realized  from  the  sale  t©  discharge  their  claims 
in  full.  The  learned  master  evidently  regarded  the  proceed- 
ings as  expediting  the  collection  of  such  debts,  and  affording 
the  encumbrancers,  by  a  remedial  statute,  a  speedier  and  more 
direct  mode  of  obtaining  satisfaction  of  their  demands.  He 
very  properly,  under  such  circumstances,  considered  the  loss 
of  the  option  when  they  should  seek  their  remedy,  and  in 
what  form  of  proceeding,  as  too  unsubstantial  a  loss  to  amount 
to  a  deprivation  of  a  remedy  within  the  meaning  of  the  con- 
stitutional provision. 

It  is  clear  that  any  legislation,  the  effect  of  which  is  to  de- 
prive the  party  of  the  power  to  resort  to  the  person  or  any 
property,  which,  as  the  law  stood  when  the  contract  was 
made,  might  have  been  taken  or  applied  in  satisfaction  of  his 
demand,  is  within  the  constitutional  prohibition.  The  evil 
at  which  this  peculiar  provision  was  mainly  directed,  was  the 
construction  put  upon  the  provision  of  the  constitution  of  the 
United  States  relative  to  the  obligations  of  contracts,  admit- 
ting the  power  of  the  states  to  pass  laws  abolishing  imprison- 


JUNE  TERM,  1873.  281 

Rader  v.  Southeasterly  Road  District  of  Township  of  Union. 

ment  for  debt,  and  exempting  property  from  execution,  and 
make  such  laws  applicable  to  existing  contracts,  whereby  the 
value  of  contracts  in  the  ability  to  enforce  performance  was  in 
many  instances  seriously  impaired. 

It  is  equally  clear  that  the  legislature  may  make  laws 
which  incidentally  affect  the  pursuit  of  remedies  for  enforcing 
existing  contracts ;  as,  for  instance,  such  as  regulate  the  ad- 
mission of  evidence,  the  course  of  practice  in  the  courts,  the 
mode  of  conducting  sales  under  judgments  and  executions^ 
and  altering  the  forms  of  action,  or  prescribing  periods  for 
the  limitation  of  actions  within  a  reasonable  time.  In  this 
class  may  be  included  acts  changing  a  corporate  name,  or 
increasing  corporate  limits,  and  similar  acts,  altering  or  modi- 
fying in  mere  matters  of  form,  the  means  of  realizing  the 
benefits  of  a  contract,  leaving  the  substance  of  the  remedy 
unaffected. 

In  this  case  the  corporation  dissolved  was  not  such  as  was 
the  owner  of  any  property.  Its  franchises  consisted  of  its 
powers  to  lay  out,  open  and  improve  streets,  roads,  highways, 
and  public  parks,  within  the  designated  boundaries,  and  to 
assess  the  cost  thereof  on  the.  lands  of  individual  proprietors 
within  those  limits;  and  it  was  given  capacity  of  suing  and 
being  sued,  and  of  having  and  using  a  common  seal,  solely 
for  the  purpose  of  executing  such  powers.  No  tax  could  be 
laid  by  its  authority  except  for  that  purpose.  A  repealing 
act  which  dissolved  the  corporation,  and  extinguished  the 
capacity  to  make  assessments  to  discharge  the  debts  con- 
tracted in  execution  of  the  work,  would  be  an  act  impairing 
the  obligation  of  contracts,  inasmuch  as  creditors  would 
thereby  be  deprived  of  all  remedy.  Curran  v.  Arkansas,  15 
How.  304 ;  Von  Hoffman  v.  City  of  Quincy,  4  Wall.  535. 

But  the  repealing  act  carefully  avoids  this  result.  It,  in 
express  terms,  provides  that  the  repeal  of  the  former  act 
shall  not  in  any  way  affect  or  impair  any  legal  contracts  of' 
the  board  of  commissioners,  or  any  indebtedness  contracted 
by  them.  The  township  committee  is  authorized  to  compro- 
mise and  settle  with  the  contractors,  and  if  a  settlement  can- 


282  NEW  JERSEY  SUPREME  COURT. 

Kiider  v.  Southeasterly  Eoad  District  of  Township  of  Union. 

not  be  effected,  to  carry  out  and  complete  the  contracts  made 
by  the  commissioners,  and  to  pay  all  just  debts  contracted  by 
the  commissioners  for  improvements  under  the  original  act 
with  the  same  power  and  authority  on  the  part  of  the  town- 
ship committee,  and  their  successors,  to  make  assessments  for 
the  payment  of  the  expenses  of  carrying  out  and  completing 
such  contracts,  and  to  collect  the  same,  as  were  conferred  by 
the  original  act.  In  addition  thereto,  the  township  commit- 
tee is  authorized  to  borrow  money,  and  issue  bonds  of  the 
township,  to  enable  them  to  compromise  or  carry  out  the  un- 
executed contracts  of  the  commissioners,  and  pay  the  indebt- 
edness contracted  by  them.  If  this  latter  provision  be  found 
to  be  nugatory,  for  the  reason  that  it  imposes  upon  the  town- 
ship a  debt  not  of  its  own  contracting,  nevertheless  the  con- 
clusive answer  to  the  plaintiff's  argument  is,  that  the  repeal- 
ing act  saves  the  obligation  of  prior  contracts,  and  retains  the 
n-ieans  by  whic4i  the  moneys  were  originally  to  be  raised  to 
discharge  liabilities  incurred  by  the  commissioners. 

If  the  plaintiff  should  recover  a  judgment  in  this  case,  he 
could  collect  nothing  by  execution.  His  only  available 
remedy  would  be  by  mandamus  to  compel  the  making  and 
levying  of  assessments  in  the  manner  prescribed  by  the  act. 
That  remedy  is  preserved  by  the  repealing  act.  The  only 
oliange  made  is  in  substituting  the  township  committee  for 
the  commissioners  to  perform  the  public  duties.  The  plain- 
tiff is  not  deprived  of  any  remedy  on  his  contract,  which 
existed  when  it  was  made.  It  has  only  been  varied  in  imma- 
terial respects. 

Nor  is  this  conclusion  changed  by  the  circumstance  that 
this  action  was  pending  when  the  repealing  act  was  passed, 
and  is  abated  by  such  repeal.  The  plaintiff,  it  is  true,  loses 
his  costs.-  But  the  right  to  recover  costs  is  no  part  of  the 
remedy  which  inheres  in  the  contract.  That  right  is  purely 
incidental,  and  depends  upon  the  state  of  the  law  when  the 
suit  is  determined.  Any  other  construction  would  be  highly 
unreasonable.  If  the  right  to  costs  in  prosecuting  a  suit  on 
the  contract  is  made  by  constitutional  enactment  inherent  in 


JUNE  TERM,  1873.  283 

State,  Marshall  et  al.,  Pros.,  v.  Street  Commissioner  of  Trenton. 

the  contract  as  part  of  the  remedy,  it  would  follow  that  modi- 
fications in  matter  of  costs,  either  as  to  the  right  to  recover  them, 
or  the  amount  that  should  be  recoverable,  would  be  impracti- 
cable. 

If  it  is  competent  for  the  legislature,  between  the  making  of 
a  contract  and  the  institution  of  a  suit,  to  pass  acts  reducing 
the  costs  that  shall  be  recoverable,  or  denying  costs  altogether, 
a  similar  change  in  the  law,  pending  the  action,  must  be  equally 
within  legislative  powers.  The  right  to  costs  does  not  become 
vested  until  judgment  is  pronounced. 

Tlie  plea  demurred  to  is  so  informal  that  we  had  some  hesita- 
tion in  regarding  it  as  necessarily  presenting  for  decision  the 
constitutional  questions  considered.  But  the  counsel  for  the 
demurrant  has,  in  his  brief,  treated  the  pleading  as  unexcep- 
tionable in  every  other  respect.  Treating  it  as  a  plea  in  abate- 
ment of  the  action,  for  the  reason  that  tlie  legal  existence  of 
the  defendants  ceased  with  the  repeal  of  the  act  which  gave 
them  being  as  a  corporation,  judgment  on  the  demurrer  is 
given  for  the  defendants. 

Cited  in  Slate,  Bartlett,  pros.,  v.  Trenton,  9  Vr.  64;  Baldwin  v.  Newark,  9 
Vr.  158;  Seaine  v.  Belleville,  10  Vr.  526;  Magie  v.  Township  of  Union,  11 
Vr.  453 ;  Wilson  v.  Herbert,  12  Vr.  454 ;  Gabler  v.  Elizabeth,  13  Vr.  79 ; 
Baldwin  v.  Flagg,  14  Vr.  495  ;  New  Brunswick  v.  Williamson,  15  Vr.  165 ; 
Rader  v.  Township  of  Union,  15  Vr.  259  ;  Middleton  v.  West  Line  B.  B.  Co., 
10  a  E.  Gr.  306;  Bandolph  v.  Middlelon,  11  C.  E.  Or.  543;  Isewark  Sav'gs 
Inst.  V.  Forman,  6  Stew.  Eq.  436. 


STATE,  MARSHALL  ET  AL.,  PROSECUTORS,  v.  CYRUS  CAD- 
WALADER,  STREET  COMMISSIONER  OF  THE  CITY  OF 
TRENTON. 

1.  A  tannery  is  not  per  se  a  nuisance,  and  cannot  be  abated  by  the  street 
commissioner  or  board  of  health  until  they  are  adjudged  to  be  so  em- 
ployed as  to  be  inimical  to  public  health  or  safety,  or  until  their 
owners  contravene  some  ordinance  prescribing  the  mode  in  which-they 
shall  be  used,  and  thereby  make  them  nuisances. 

2.  The  functions  of  the  board  of  health  are  of  an  executive  and  advisory, 
and  not  of  a  legislative  or  judiciat  character.  A  resolution  passed  by 
said  board  declaring  plaintiff's  tannery  to  be  a  nuisance,  is  void. 


284         NE^y  JERSEY  SUPREME  COURT. 

State,  Marshall  et  al.,  Pros.,  v.  Street  Commissioner  of  Trenton. 

3.  The  proceedings  to  enforce  the  penalty  are  defective,  in  that  the  pro- 
cess does  not  state  what  ordinance  the  defendants  had  violated,  and 
the  time  when,  and  the  manner  in  which  the  same  had  been  violated. 


On  certiorari. 

The  board  of  health  of  the  city  of  Trenton  on  the  26th  of 
August,  1872,  passed  the  following  resolution  : 

"  Resolved,  That  the  skiu  dressing  establishment  of  Mr.  J. 
Marshall  &  Son  be  declared  a  nuisance,  in  the  opinion  of  the 
board,  and  that  such  steps  be  taken  by  the  president  as  may 
be  necessary  to  have  it  abated." 

Whereupon  the  relators  were  notified  and  directed  within 
five  days  to  remove,  correct  and  abate  said  nuisance,  which 
consisted  in  vattiug,  dyeing  and  dressing  of  skins  of  animals 
on  their  premises  within  the  city  limits.  Having  failed  to 
regard  this  notice,  the  prosecutors  were  proceeded  against  by 
the  street  commissioner,  by  warrant  before  Police  Justice 
Street,  and  the  penalty  of  $10  recovered  against  them  by  his 
judgment,  for  violating  the  eleventh  section  of  the  ordinance 
respecting  the  street  commissioner,  passed  May  8th,  1866. 

Argued  at  February  Term,  1873,  before  Justices  Wood- 
hull,  Yan  Syckel  and  Scudder. 

For  the  plaintiifs,  James  Wilson. 

For  the  defendant,  James  8.  Aitkin. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  The  certiorari  in  this  case  brings  up  for 
review  the  resolution  of  the  board  of  health,  and  the  judgment 
and  proceedings  before  Police  Justice  Street. 

The  tribunal  established  by  law  to  determine  the  question 
of  nuisance  or  no  nuisance,  is  the  legislative  body  of  the  city 
government.  It  is  their  prerogative  to  adopt  such  sanitary 
measures  as  will  preserve  the  public  health,  and  to  remove 
every  nuisance  which  may  endanger  it,  and  their  determina- 
tion will  be  conclusive,  so  long  as  they  do  not  violate  the  con- 
stitution or  transcend  the  power  conferred  upon  them.     I 


JUNE  TERM,  1873.  285 

State,  Marshall,  Pros.,  v.  Street  Commissioner  of  Trenton. 

is  their  clear  right  to  restrain  any  occupation  which  proves 
detrimental  to  public  health. 

Police  regulations  controlling  the  use  of  private  property, 
so  that  it  will  not  become  pernicious  to  the  public  at  large, 
are  not  void,  although  they  may,  in  a  measure,  affect  private 
interests  without  providing  compensation.  The  law  presumes 
that  the  individual  is  compensated  by  sharing  in  the  advan- 
tages accruing  from  the  general  enforcement  of  such  beneficial 
measures. 

The  scope  of  control  over  this  subject  is  defined  by  subdi- 
vision 24  of  section  25,  of  the  city  charter,  {Ads,  1866,  p. 
375,)  in  these  words — 

"The  common  council  shall  have  power  to  make,  modify, 
amend  or  repeal  ordinances,  rules  and  regulations,  to  abate  or 
remove  nuisances  of  every  kind;  and  to  require  the  owner  or 
occupant  of  any  grocery,  cellar,  tallow  chandler's  shop, 
butcher's  stall,  soap  factory  or  tannery,  or  other  offensive  or 
unwholesome  house  or  place,  to  cleanse,  remove  or  abate  the 
same." 

They  cannot  abate  every  grocery,  butcher's  stall  or  tannery  ^ 
such  places  are  secure  against  interference  or  restraint,  until 
they  are  adjudged  to  be  so  employed  as  to  be  inimical  to  pub- 
lic health  or  safety,  or  until  their  owners  contravene  some 
ordinance  prescribing  the  mode  in  which  they  shall  be  usedy 
and  thereby  make  them  nuisances.  The  business  of  the 
plaintiffs  is  not,  per  se,  a  nuisance,  and  it  therefore  requires 
action  of  a  judicial  nature  to  determine  whether  an  occupa- 
tion lawful  in  itself,  is  so  conducted  as  to  become  liable  to 
abatement. 

The  power  to  pass  upon  this  question  is  lodged  in  the  com- 
mon council,  and  cannot  be  delegated  to  the  street  commis- 
sioner. The  legislature  has  not  entrusted  him  with  unlimited 
authority  to  abate  every  butcher's  stall,  grocery,  or  tannery 
which,  in  his  individual  judgment,  may  be  deemed  a  nuisance. 
Nor  can  a  like  power  be  exercised  by  the  board  of  health,  in 
the  absence  of  any  city  ordinance  defining  what  circumstances 
of  abuse  shall  render  these  occupations  obnoxious.     The  only 

Vol.  VII.  18 


286  NEW  JERSEY  SUPREME  COURT. 

State,  Marshall,  Pros.,  v.  Street  Commissioner  of  Trenton. 

provision  in  the  charter,  with  regard  to  the  establishment  of 
this  body,  is  contained  in  section  25,  subdivision  22,  which 
■empowers  the  common  council  to  establish  a  board  of  health 
and  define  its  powers  and  duties. 

This  clause  contains  no  warrant  to  the  common  council  to 
delegate  to,  or  confer  upon  this  board  the  powers  and  duties 
which  they  themselves  are  directed  to  exercise,  otherwise 
there  would  be  two  legislative  bodies  within  the  city,  with 
concurrent  jurisdiction  over  this  branch  of  its  municipal 
affairs.  This,  certainly,  was  not  contemplated  by  the  law- 
maker, and  if  permitted,  might  result  in  conflict  between 
them. 

The  functions  of  the  board  of  health  are  of  an  executive 
and  advisory,  and  not  of  a  legislative  or  judicial  character. 
While  in  this  respect  they  discharge  a  most  important  duty, 
it  might  be  wise  to  clothe  them  with  more  ample  authority. 
The  character  of  those  who  ordinarily  constitute  such  bodies, 
fits  them  eminently  to  be  guardians  of  the  public  health. 
The  question  in  this  case  however,  is  one  of  power  and  not  of 
public  policy. 

Where  the  injury  complained  of  is  a  nuisance  -per  se,  and  is 
denounced  by  a  general  ordinance,  such  as  the  deposit  of 
garbage,  filth,  refuse,  or  other  offensive  matter  deleterious  to 
health,  it  may  be  removed  by  the  street  commissioner,  and 
the  offender  subjected  to  the  penalty  in  such  case  provided. 

The  board  of  health  is  vested  with  full  power  to  enter  upon 
all  property  for  inspection,  and  to  direct  and  control  the  street 
commissioner  in  the  execution  of  his  office. 

In  Van  Wormer  v.  Mayor  of  Albany,  15  Wend.  263,  a  reso- 
lution of  the  board  of  health,  declaring  certain  grounds  to  be 
a  nuisance,  was  sustained,  but  it  will  be  observed  in  that  case, 
that  they  were  vested  by  statute  with  very  full  power  to  sup- 
press nuisances. 

In  the  case  certified  here,  there  is  no  ordinance  of  the  city 
defining  what  circumstances  of  abuse  will  bring  an  occupation 
or  business  like  that  of  the  relators,  otherwise  legitimate,  into 
ihe  range  of  nuisances. 


JUNE  TERM,  1873.  287 

State,  Marshall,  Pros.,  v.  Street  Commissioner  of  Trenton. 

In  this  case,  the  common  council  should  have  proceeded 
specially  against  the  parties  to  be  aifected,  and  before  their 
rights  were  impaired  by  an  adverse  adjudication,  they  were 
entitled  to  be  heard  in  their  defence.  State  v.  Jersey  City,  5 
Vroom  39 ;  State,  Bodine  et  al.,  pros.,  v.  Common  Council  of 
Trenton,  ante  p.  198. 

The  resolution  of  the  board  of  health,  in  general  terms, 
denounces  the  skin  dressing  establishment  of  the  prosecutors 
as  a  nuisance,  and  directs  it  to  be  abated.  It  does  not  bring 
the  alleged  offenders  within  the  reach  of  any  corporation  ordi- 
nance, by  enjoining  them  to  remove  any  offensive  matter 
noxious  to  public  health,  and,  per  se,  a  nuisance. 

But  if  tlie  prosecutors  had  violated  a  valid  existing  ordi- 
nance of  the  city,  the  mode  in  which  the  prosecution,  to 
recover  the  penalty,  has  been  pursued,  is  defective  both  in 
form  and  substance. 

By  the  forty-fifth  section  of  the  charter,  suit  for  the  penalty 
may  be  instituted  before  a  police  justice,  but  before  process 
issues,  an  affidavit  must  be  filed,  stating  that  the  party  pro- 
■ceeded  against  has  violated  an  ordinance  of  the  city,  where- 
upon process,  either  in  the  nature  of  a  warrant  or  summons 
issues,  which  must  specify  what  ordinance  the  defendant  has 
violated,  and  the  time  when  and  the  manner  in  which  the  same 
has  been  violated.  The  statutory  requisites  have  not  been 
<3umplied  with. 

In  my  opinion,  therefore,  the  judgment  and  proceedings 
■below  should  be  set  aside,  with  costs. 

Cited  in  Dawes  v.  Hightstown,  16  Vr.  127. 


288  NEW  JERSEY  SUPREME  COURT. 


State,  Alden,  Pros.,  v.  Mayor,  &c.,  of  Newark. 


THE  STATE,  REBECCA   R.  ALDEN,  PROS.,  v.  THE  MAYOR, 
&c.,  OF  NEWARK. 

1  The  assessor,  in  describing  real  estate  under  the  act  concerning  taxes, 
{Nix.  Dig.  952,  pi.  92,)  may  use  abbreviations  so  long  as  they  are 
intelligible,  and  leave  no  uncertainty  as  to  the  property  upon  which 
the  imposition  is  intended  to  be  laid. 

2.  The  publication  of  notices  to  tax  payers,  required  by  tax  laws,  is  an 
indispensable  preliminary  to  the  legality  of  a  tax  sale,  and  it  must  be 
made  in  strict  accordance  with  statutory  requirement. 


Oq  certiorari. 

Argued  at  February  Term,  1873,  before  Justices  Wood- 
hull,  Van  Syckel  and  Scddder. 

For  the  plaintiff,  C{  Parker. 

For  the  defendants,  Thos.  N.  McCarter. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  The  validity  of  a  declaration  of  sale  of 
certain  lands  of  Joseph  L  Alden,  for  uwpaid  taxes,  in  the  city 
of  Newark,  for  the  year  1859,  and  of  the  proceedings  touching 
the  same,  is  controverted  in  this  case. 

The  subject  matter  of  the  litigation  is  certified  into  this  court 
by  virtue  of  the  act  of  April  2d,  1869.  {Pamph.  Laws,  p. 
1238.)* 

The  question  whether  there  is  a  legal  foundation  for  the  tax 
title,  is  to  be  determined  by  this  court  on  certiorari,  and  not 
as  formerly,  in  an  action  of  ejectment. 

The  stringent  rule  which  applies  to  titles  devised  under  tax 
sales,  is  clearly  stated  by  Justice  Depue,  in  The  State,  Baxter^ 
prosecutor,  v.  Jersey  City,  ante  p.  188. 

"  The  sale  of  lands  for  taxes  or  assessments,  is  the  execu- 
tion of  a  naked  power.     Every  requirement  of  the  statute 

*  Bev.,  p.  1045,  §  15. 


JUNE  TERM,  1873.  289 

State,  Alden,  Pros.,  v.  Mayor,  &c.,  of  Newark. 

imposing  the  liability  and  prescribing  the  procedure  to  enforce 
it,  which  tends  to  the  security  of  the  owner,  or  is  for  his  bene- 
fit, must  be  strictly  conformed  to.  No  intendment  will  be 
made  in  favor  of  the  legality  of  the  proceedings.  To  support 
the  title,  the  burden  of  showing  compliance  with  the  law  is  on 
the  purchaser." 

The  first  alleged  defect  upon  which  the  plaintiff  relies  is, 
that  in  the  assessment  the  property  assessed  is  not  described 
with  sufficient  certainty. 

The  act  concerning  taxes,  {Nix.  Big.  952,  pi.  92,)*  requires 
a  designation  of  the  real  estate  assessed  by  such  short  descrip- 
tion as  will  be  sufficient  to  ascertain  the  location  and  extent 
thereof." 

The  description  in  this  case  is,  "  Joseph  L.  Alden,  No.  16 
Front  street,  real  estate,  H.,  L.  and  stable." 

All  that  the  statute  requires,  is  a  description  which  will 
identify  the  real  estate.  Abbreviations  may  be  used  as  long 
as  they  are  intelligible,  and  leave  no  uncertainty  as  to  the 
property  upon  which  the  imposition  is  intended  to  be  placed. 

In  this  case,  the  real  estate  consisted  of  H,,  L.  and  stable, 
No.  16  Front  street,  evidently  meaning  house,  lot  and  stable. 

There  can  certainly  be  no  difficulty  in  locating  this  lot,  and 
it  would  burden  the  assessor  with  unnecessary  labor  to  require 
a  more  extended  description. 

Tiie  second  reason  assigned  for  reversal  is,  that  the  notice 
of  unpaid  taxes  was  not  published  as  required  by  law. 

The  eighty-fourth  section  of  the  charter  of  Newark  directs 
that  the  city  treasurer,  after  completing  the  transcript  of  unpaid 
taxes,  shall  cause  a  notice  to  be  published  in  two  daily  news- 
papers in  said  city,  stating  that  said  transcript  of  unpaid  taxes 
has  been  made,  and  that  unless  said  taxes  shall  be  paid  at  his 
office  within  twenty  days  aftei  the  first  publication  of  said 
notice,  he  will  proceed  to  collect  the  same  by  public  sale,  ac- 
<;ording  to  law. 

The  cases  hold  that  these  publications  are  indispensable 
preliminaries  to  the  legality  of  a  tax  sale,  and  if  so,  they 

*Ilev.,p.  1154,  §  69. 


290  NEW  JERSEY  SUPREME  COURT. 


State,  Alden,  Pros  ,  v.  Mayor,  &c ,  of  Newark. 


must,  necessarily,  be  made  in  strict  accordance  with  statutory 
requirement.  Thatcher  v.  PoiveH^Q  Wheat.  119  ;  Ronkendorff 
V.  Taylor^s  Lessees,  4  Peters  349  ;  Sharp  v.  Speir,  4  Hill  76. 

The  notice  given  in  this  case  was,  that  unless  the  tax  was 
paid  within  twenty  days  from  the  date  of  the  notice,  the  land 
would  be  sold  to  pay  the  same. 

The  notice  was  dated  August  10th,  1860,  but  was  not  pub- 
lished until  August  11th,  and  consequently,  but  nineteen  days 
were  given  the  tax  payer,  after  the  first  publication,  in  which 
to  pay  the  tax.  If  the  treasurer  could  reduce  the  time  to  nine- 
teen (lays,  there  is  no  reason  why  he  might  not  have  made  it 
ten,  or  any  less  number.  It  was  the  right  of  Alden  to  have 
twenty  days'  notice,  and  in  this  respect  the  course  of  procedure 
prescribed  by  the  statute  has  not  been  complied  with. 

The  object  of  the  notice  is  to  apprise  the  owner  of  a  pro- 
ceeding which,  if  not  arrested  by  the  payment  of  the  tax,  will 
divest  him  of  his  title.  The  manner  in  which  notice  shall  be 
given  is  regulated  by  positive  law,  and  there  can  be  no  depart- 
ure from  it.  The  power  of  sale  will  attach  only  when  every^ 
prerequisite  has  been  complied  with.  Its  basis  is  the  regularity 
of  all  anterior  proceedings. 

In  my  opinion,  therefore,  the  sale  cannot  be  supported,  and 
judgment  should  be  entered  accordingly. 

Cited  in  State,  Parker,  pros.,  v.  Elizabeth,  10  Vr.  688 ;  State,  AUm,  pros.^. 
V.  Woodbridge,  13  Vr.  401. 


JUNE  TERM.  1873.  291 


State,  Hoboken  Land  and  Improv't  Co.,  Pros.,  v.  Mayor,  &c.,  of  Hoboken, 


THE  STATE,  THE  HOBOKEN  LAND  AND  IMPROVEMENT 
COMPANY,  PROSECUTORS,  v.  THE  MAYOR.  &c.,  OF  HO- 
BOKEN. 

1.  The  writ  haying  been  allowed  after  the  work  was  completed,  it  is 
therefore  dismissed,  so  far  as  it  brings  up  the  ordinance  complained  of. 

2.  It  need  not  appear  affirmatively  that  commissioners  of  assessment, 
who  are  permanent  officers  of  the  city,  are  freeholders  resident  in  th& 
city,  as  required  by  section  fifty-two  of  the  cliarter. 

3.  It  must  appear  by  the  commissioners'  report  that  they  examined  intO' 
the  whole  matter,  and  that  they  imposed  the  burdens  in  proportion  to 
the  benefits  received. 

4.  Burdens  in  excess  of  the  benefits  cannot  be  imposed  exclusively  upon 
the  land  owners,  subject  to  assessment.  If  the  lands  within  the  circle 
of  benefits  are  not  benefited  as  much  as- the  improvement  costs,  the  ex- 
cess must  be  borne  by  general  taxation. 


On  certiorari. 

This  certiorari  brings  up  an  ordinance  passed  hy  the  com- 
mon council  of  Hoboken,  April  15th,  1869,  to  improve 
Eighth  street,  from  the  westerly  line  of  Willow  street  to  the 
foot  of  the  hill,  and  the  final  assessment  under  it. 

Argued  at  February  Term,  1873,  before  Justice  Van 
Syckel. 

For  the  plaintiffs,  J.  Dixon,  L.  Ahhett  and  C.  Parker. 
For  the  defendants,  J.  C.  Besson. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  The  work  under  this  ordinance  was 
completed  in  December,  1871,  and  the  writ  was  not  allowed 
until  January,  1872.  The  prosecutors  having  permitted  the 
work  to  be  completed  before  they  applied  to  this  court  for 
relief,  the  writ  of  certiorari  must  be  dismissed,  so  far  as  it 
brings  up  for  review  the  ordinance  complained  of.      Wilkin- 


292  NE\y  JERSEY  SUPREME  COURT. 

State,  Hoboken  Land  and  Improv't  Co.,  Pros.,  v.  Mayor,  &c.,  of  Hoboken. 

son  et  al.  v.  City  of  Trenton,  decided    in    Court   of   Errors 
March  Term,  1873. 

Tlie  final  assessment  was  confirmed  January  9th,  1872,  and 
if  that  is  set  aside,  the  charter  of  Hoboken  imposes  upon  the 
Supreme  Court  the  duty  of  ajipointing  commissioners  to  make 
a  new  assessment. 

1.  The  first  objection  taken  to  the  validity  of  the  assess- 
ment is  that  it  does  not  appear  that  the  commissioners  who 
made  it  are  freeholders  resident  in  the  said  city,  as  required 
by  section  fifty-two  of  the  charter. 

By  a  supplement  to  the  charter,  passed  April  6th,  1871, 
(section  seventeen),  the  mayor  and  common  council  were  au- 
thorized to  appoint  a  board  of  commissioners,  whose  duty  it 
was  to  make  all  assessments  during  their  term  of  office. 

This  assessment  was  made  by  a  board  so  appointed,  who 
were  permanent  officers  of  the  city,  and  not  by  commissioners 
appointed  for  a  particular  case. 

It  is  not  necessary  to  set  forth  the  qualifications  of  officers 
of  the  corporation.     State  v.  Jersey  City,  4  Dutcher  504. 

2.  The  fifty-second  section  of  the  charier  provides  that  the 
commissioners  shall  examine  into  the  whole  matter,  and  shall 
determine  and  report  in  writing  to  the  council  what  real 
estate  ought  to  be  assessed  for  such  improvement,  and  what 
proportion  of  such  expenses  shall  be  assessed  to  each  separate 
parcel  or  lot  of  land,  and  that  the  assessment  shall  be  made 
upon  and  paid  by  the  lands  and  real  estate  benefited  by  the 
improvement,  in  proportion  to  the  benefit  received. 

This  report  is  defective  in  two  particulars:  1st.  It  does 
not  state  that  the  commissioners  examined  into  the  whole 
matter.  2d.  They  say  that  they  have  assessed  the  cost  of 
4he  work  "according  to  the  provisions  of  the  charter  upon  the 
property  benefited  by  the  same,"  but  they  do  not  certify  nor 
show  that  they  imposed  the  burden  in  proportion  to  the  bene- 
fits received. 

3.  It  appears  by  the  testimony  of  each  one  of  the  commis- 
sioners, that  they  assessed  all  the  real  estate  in  the  zone  of  the 


JUNE  TERM,  1873.  293 

•State,  Hoboken  Land  and  Improv't  Co.,  Pros.,  v.  Mayor,  &c.,  of  Hoboken. 

assessment,  to  a  greater  extent  than  it  was  benefited  by  the 
improvement. 

The  charter  directs  that  the  assessment  shall  be  laid  upon 
the  real  estate  benefited  in  proportion  to  the  benefit  received. 

The  work  in  this  case  having  cost  more  than  the  benefit  to 
be  derived  from  it  will  be  worth  to  the  land  owners  who  can 
be  assessed,  the  question  is  presented,  whether  the  cost  in  excess 
of  the  benefits  can  be  imposed  upon  such  land  owners. 

The  legislature,  in  conferring  this  power  to  assess  upon  the 
city  government,  did  not  contemplate  a  case  of  this  kind.  The 
presumption  was,  that  no  undertaking  would  be  entered  upon 
-which  would  not  be  remunerative  in  its  results,  and  which 
would  not  confer  benefits,  at  least  co-extensive  with  its  cost.  In 
this  case,  it  appearing  beyond  controversy  that  there  is  an  excess 
of  expenses  over  benefits,  private  property  is  taken  pro  tanto 
for  public  use,  without  compensation.  That  which  is  received 
by  the  land  owner  is  not  equal  to  what  is  taken  from  him. 
This  excess  of  cost  cannot,  in  the  legitimate  exercise  of  the 
power  of  taxation,  be  thrown  exclusively  upon  the  persons 
subject  to  assessment  in  this  case.  If  there  are  no  other  lauds 
to  which  the  benefits  reach,  it  is  a  burden  which  the  public 
ought  to  bear,  and  it  should  be  levied  by  general  taxation. 
The  legislative  act  confers  upon  the  corporation  no  power  to 
impose  a  burden  on  the  property  owner,  in  excess  of  the 
benefits  accruing  to  him,  and  if  it  did,  it  would  be  unconsti- 
tutional and  void. 

This  doctrine  is  so  securely  founded  in  reason  and  sound 
policy,  and  so  firmly  established  in  The  Tide  Water  Co.  v. 
Coster,  3  C.  E.  Green  527,  that  it  cannot  be  shaken. 

In  the  later  case  of  The  State  v.  Fuller,  5  Vroom  227,  the 
Supreme  Court  sustained  an  assessment  which  was  laid  accord- 
ing to  the  number  of  lineal  feet,  but  in  that  case  no  exce-ss  of 
cost  over  benefits  was  shown  to  exist,  and  the  court  presumed 
that  there  was  none  in  fact.  If  there  is  any  conflict  between 
these  cases,  I  should  feel  bound  by  the  case  in  the  court  of 
last  resort. 


294  NEW  JERSEY  SUPREME  COURT. 

State,  Heboken  Land  and  Improv't  Co.,  Pros.,  v.  Mayor,  &c.,  of  Hoboken. 

This  point  is  so  ably  presented  and  discussed  in  that  case, 
that  it  is  unnecessary  to  say  more  than  that  the  conclusion- 
reached  by  the  Chief  Justice  should  be  strictly  adhered  to. 

The  argument  that  this  case  is  exceptional  because  some  of 
the  relators  petitioned  to  iiave  the  improvement  made,  and  are 
therefore  bound  to  pay  whatever  it  may  have  cost,  is  not 
well  founded.  They  petitioned  to  have  the  work  executed  in 
conformity  to  the  city  charter,  and  they  cannot  be  subjected  to 
any  exaction  more  onerous  than  the  charter  authorizes. 

The  relators  had  no  control  over  the  cost  of  the  undertaking, 
that  was  exclusively  within  the  control  of  the  city  authorities, 
and  it  was  their  duty  to  count  the  cost  before  they  granted  the 
prayer  of  tlie  petition,  and  entered  into  the  engagement. 

4.  A  further  objection  taken  to  this  assessment  is,  that  there 
is  included  in  it  the  expense  of  earth  filling  on  the  adjacent 
lot.s,  outside  of  the  street  lines. 

The  answer  made  by  the  defendants  is,  that  the  filling  out- 
side of  the  street  was  caused  by  the  bulging  necessarily  inci- 
dent to  filling  up  the  street  to  grade,  and  that  no  dirt  was 
thrown  outside  of  the  limits  of  the  highway. 

So  lar  as  this  is  true,  it  is  a  good  answer  to  the  objection, 
b.ut  any  fiUin^utuiecessarily,  and  not  unavoidably  made  upon 
the  adjacent  lots,  in  the  proper  prosecution  of  the  enterprise, 
is  unauthorized  and  gratuitous,  and  cannot  be  charged  upon 
the  land  owners. 

The  surveyor's  estimate  of  the  expense  of  the  entire  work, 
before  it  was  entered  upon,  was  $40,589.74,  while  the  actual 
cost,  as  certified  by  him,  was  $123,193.21.  This  remarkable 
discrepancy  certainly  does  no  credit  to  his  skill  as  an  engineer, 
and  may  be  looked  into  by  the  new  commissioners  to  be 
appointed,  w'hose  duty  it  will  be,  under  the  act,  to  examine 
into  the  whole  matter. 

In  my  opinion,  the  entire  assessment  should  be  set  aside, 
and  a  new  assessment  ordered. 

Cited  in  State,  Harris,  pros.,  v.  Jersey  City,  9  Vr.  85 ;  State,  Orant,  pros., 
V.  Clark,  9  Vr.  102 ;  State,  Spear,  pros.,  v.  Perth  Amboy,  9  Vr.  425 ;  Green 
V.  Jersey  City,  13  Vr.  118 ;  Bowne  v.  Logan,  14  Vr.  421 ;  Rinehart  y.  Coweli, 
15  Vr.  360. 


JUNE  TERM,  1873.  295 


■  Swayze  v.  N.  J.  Midland  Railway  Co. 


SWAYZE  V.  NEW  JERSEY  MIDLAND  RAILWAY  COMPANY. 

1.  The  proviso  in  the  3d  section  of  the  act  incorporating  the  New  Jersey 
Midland  Railway  Company,  requiring  the  road  to  be  laid  out  in  Sus- 
sex county,  under  the  charter  of  the  New  Jersey,  Hudson  and  Dela- 
ware Railroad  Company,  is  not  fulfilled,  either  in  terms  or  effect,  by 
the  report  of  an  assessment  made  under  the  charter  of  the  New  Jersey 
Western  Railroad  Company,  which  states  that  the  commissioners 
have  taken  into  consideration  the  benefits  to  the  owner  from  such, 
railroad.     The  benefits  should  not  be  estimated. 

2.  The  affidavits  and  report  show  that  the  owner  of  the  land  had  notice 
of  the  meeting  of  commissioners. 


On  certiorari  to  review  appointment  and  report  of  commis- 
sioners, &c. 

Argued  at  February  Term,  1873,  before  Justices  Wood- 
mull,  Van  Syckel  and  Scuddeb. 

For  the  plaintiff,  R.  Hamilton. 

For  the  defendants,  M.  M.  Knapp, 

The  opinion  of  the  court  was  delivered  by 

ScuDDER,  J.  The  appointment  and  report  of  commission- 
ers to  value  the  land  and  damages  of  the  prosecutor,  in  pro- 
ceedings under  the  defendants'  charter  to  construct  their  road 
bed  through  Hardyston  township,  in  the  county  of  Sussex^^ 
are  brought  before  us  for  review  by  certiorari. 

The  jK-incipal  reason  stated  for  a  reversal  is  that  the  pro- 
ceedings have  been  taken  under  the  charter  of  the  New  Jersey 
Western  Railroad  Company,  whereas  by  the  charter  of  the 
New  Jersey  Midland  Railway  Company,  (§  3,)  their  road 
must  be  laid  out  and  constructed  through  the  county  of  Sus- 
sex, under  the  chartered  rights,  powers  and  privileges  of  the 
New  Jersey,  Hudson  and  Delatoare  Railroad  Cov'ipany. 

The  New  Jersey  Midland  Railway  Company  is  formed  by 
the  consolidation  of  the  "  New  Jersey,  Hudson  and  Delaware 
Railroad  Company,"  "  The  New  Jersey  Western  Railroad 
Company,"  and  "  Sussex  Valley  Railroad  Company,"  author- 


296  NEW  JERSEY  SUPREME  COURT. 

Swaj'ze  V.  X.  J.  Midland  Eailway  Co. 

ized  by  an  act  approved  March  17th,  1870,  (Laws  811)  and 
-confirmed  by  statute  of  March  31st,  1871,  {Laws  1093). 

The  3d  section  of  the  charter  contains  the  proviso  "  that 
the  said  consolidated  or  New  Jersey  Midland  Railway  Com- 
pany shall  be  laid  out  and  constructed  through  the  county  of 
Sussex,  under  the  chartered  rights,  powers  and  privileges  of  the 
said  New  Jersey,  Hudson  and  Delaware  Railroad  Company." 

It  is  claimed  that  this  proviso  will  avoid  all  proceedings 
taken  to  condemn  land  under  any  other  charter  than  that 
named  therein.  On  the  other  hand,  it  is  said  that  by  the 
general  terms  of  the  act  authorizing  the  consolidation  of  these 
three  several  companies,  and  their  merger  into  one  company, 
all  the  rights,  powers  and  privileges  possessed  by  each  sepa- 
rately, were  incorporated  into  the  new  company,  and  ceased 
to  have  any_existeuce  outside  of  the  present  organization.  It 
is  clearly  a  sufficient  answer  to  this  latter -suggestion,  that  the 
proviso  must  be  construed  with  the  other  parts  of  the  act,  so 
as  to  give  it  the  effect  intended  by  the  legislature.  While, 
therefore,  the  general  purpose  of  the  act  may  well  be  con- 
strued to  be  a  complete  union  of  these  separate  companies,  it 
was  plainly  within  the  power  of  the  legislature  to  insert  a 
proviso,  in  the  nature  of  an  exception,  that  certain  acts  should 
be  done  under  the  special  provisions  of  one  charter,  rather 
than  under  the  general  terms  of  the  charter  for  consolidation. 
If  this  intention  is  manifest,  as  I  think  it  is,  then  it  settles  the 
construction ;  and  all  proceedings  within  the  proviso  must  be 
according  to  its  terms.  In  this  case,  the  New  Jersey  Midland 
Railway  Company  are  about  to  lay  out  and  construct  their 
road  through  the  lands  of  the  prosecutor,  in  the  county  of 'Sus- 
sex. It  must,  therefore,  be  done  under  the  chartered  rights, 
powers  and  privileges  of  the  New  Jersey,  Hudson  and  Dela- 
ware Railroad  Company.  These  rights,  powers  and  privileges 
include  the  condemnation  of  laud  for  the  purpose  of  a  road 
bed  and  embankments,  and  the  proceedings  for  condemnation 
must  be  according  to  the  charter  of  the  designated  company. 

The  petition  of  the  New  Jersey  Midland  Railway  Com- 
j)any,  for  the  appointment  of  commissioners,  sets  forth,  among 


JUNE  TERM,  1873.  297 

Swayze  v.  N.  J.  Midland  Railway  Co. 

other  things,  that  a  survey  of  the  route  through  the  described 
lands  of  Vaucleve  M.  Swayze,  the  prosecutor,  has  been  duly 
filed  in  the  office  of  the  secretary  of  state,  under  and  by  vir- 
tue of  the  provisions  of  the  charter  or  act  of  incorporation  of 
the  New  Jersey  Western  Railroad  Company,  approved  March 
2d,  1867,  and  of  the  supplements  thereto,  and  -particularly  of 
the  supplement  thereto,  approved  March  \Qth,  1870;  and  the 
petition  prays  for  the  appointment  of  commissioners  to  ex- 
amine and  appraise  the  land,  and  assess  the  damages  accord- 
ing to  the  provisions  of  said  charter  and  supplements.  The 
appointment  dated  July  22d,  1872,  recites  the  facts  stated  in 
the  petition,  and  appoints  three  commissioners  to  examine 
and  appraise  the  required  land,  and  assess  the  damages,  and' 
whatever  they,  as  such  commissioners  are  required  by  law  to 
assess  upon  twenty  days'  notice,  &c. 

The  commissioners  made  their  report,  dated  September 
19th,  1872,  with  an  appraisement  of  the  value  of  the  land 
and  materials  required  and  taken,  and  for  the  damages  of  the 
said  Vancleve  M.  Swayze  ;  "  having  made  such  appraisement 
and  assessment,  at  the  same  time  taking  into  consideration  all 
the  benefits  derived  from  or  in  consequence  of  the  value  of  the 
said  railroad  to  the  said  owner" 

This  last  clause  of  the  report  of  commissioners  explains 
the  difference  between  the  charter  of  the  New  Jersey,  Hudson 
and  Delaware  Railroad  Company,  and  of  the  New  Jersey 
Western  Railroad  Company,  in  relation  to  the  assessment  of 
damages  to  lands. 

By  the  charter  of  the  former,  passed  March  8th  1832, 
{Laws  133)  the  commissioners  are  required  to  make  a  just 
and  equitable  estimate  or  appraisement  of  the  value  of  the 
lands  or  materials,  and  assessment  of  the  damages  sustained 
by  the  owner  or  owners  thereof,  by  reason  of  the  taking. 

By  the  charter  of  the  latter,  approved  March  21st,  1867,. 
{Laws  386)  the  same  form  of  words  is  used  for  the  valuation 
of  lands  and  assessment  of  damages ;  but  by  the  supplement 
to  the  charter,  approved  March  16th,  1870,  {Laws  580)  to 
which  special  reference  is  made  in  the  petition  of  the  defend- 
ants in  this  case,  it  is  enacted,  that  in  the  extension  of  their 


^98  NEW  JERSEY  SUPREME  COURT. 


Swayze  v.  N.  J.  Midland  Railway  Co. 


railroad  to  a  point  on  the  Hudson  river  at  or  near  Hoboken, 
or  \yeehawken,  all  necessary  lands  and  materials  to  be  taken 
and  used  by  the  said  "  The  New  Jersey  Western  Railroad 
Company,"  may  be  taken  in  the  same  manner  and  by  the 
same  proceedings  as  are  specifically  set  forth  in  the  charter  of 
the  Hackeusack  and  New  York  Railroad  Company,  except- 
ing certain  lands,  &c. 

Tnrning  to  the  charter  of  the  Hackensack  and  New  York 
Railroad  Company,  approved  March  14th,  1856,  {Laws  340), 
we  find  that,  iw  making  the  valuation  of  land  and  assessment 
of  damag-es,  the  commissioners  are  to  take  into  considera- 
tion  "  all  the  benefits  to  be  derived  from,  or  in  consequence 
of,  the  said  railroad,  as  the  case  may  be,  to  the  said  owner  or 
owners,"  &G. 

In  comparing  the  charters  of  these  two  companies,  and 
supplements,  it  will  be  found  this  is  the  only  important 
difference  between  them  in  laying  out  and  constructing  their 
respective  roads;  and  it  is  this  difference  that  is  doubtless  the 
point  aimed  at  in  the  proviso  contained  in  the  third  section 
of  the  charter  of,  the  New  Jersey  Midland  Railway  Company. 
It  was  there  intended  that  in  constructing  the  road  through 
Sussex  county,  under  the  act  of  consolidation,  in  the  assess- 
ments of  damages  to  lands  taken,  the  benefits  to  be  derived 
b.y  the  owners  from  the  railroad  should  not  be  considered. 

The  petition  and  appointment  in  this  case  show  that  the 
proceedings  have  been  under  the  charter  of  the  New  Jersey 
Western  Railroad  Company,  and  the  commissioners  state,  in 
their  report,  that  they  have  considered  all  the  benefits  derived 
from,  or  in  consequence  of,  the  value  of  the  said  railroad  to 
the  said  owner. 

This  is  adopting,  in  terms,  a  wrong  principle  of  assess- 
ment, variant  from  that  prescribed  in  the  charter  of  the  Mid- 
land company  when  laying  their  road  throughthe  county  of 
^Sussex. 

But  it  is  Baid  that  it  is  erroneous  only  in  the  terms  used, 
and  not  in  effect;  that  in  the  assessment  of  damages  to  the 
owner  of  the  land,  the  estimate  of  the  special  benefits  to 


JUNE  TERM,  1873.  299 

Swayze  v.  N.  J.  Midland  Railway  Co. 

him  as  such  owner,  by  the  construction  of  the  railroad,  must 
enter  as  one  of  the  elements  of  the  calculation.  It  is  true 
tlrat,  in  the  general  definitions  which  have  been  given  to  the 
term  damages  in  the  proceedings  for  condemnation  of  lands 
by  municipalities  and  railroad  companies,  questions  have 
arisen,  and  differences  of  opinion  are  expressed  as  to  whether 
this  term  includes  an  offset  of  benefits  to  remaining  property, 
which  are  common  to  the  owners  of  the  lauds  taken,  and 
others  in  the  same  locality,  or  those  which  are  special  and 
peculiar  to  such  owner;  the  former  being  generally  disap- 
proved, and  the  latter  being  sometimes  allowed,  but  it  will 
be  found  that  such  construction  is  usually  limited  or  extended 
by  express  legislative  or  constitutional  provisions  in  the 
several  states  where  the  question  has  arisen.  Cooley  on  Const. 
Lhn.  *565,  et  seq. ;  Dillon  on  Mun.  Cor'p.  486,  et  seq. ;  1  Re<?f. 
on  Railways,  ch.  11,  71. 

The  subject  is  fully  discussed  in  the  above  named  elemen- 
tary treatises,  and  in  the  notes,  where  the  cases  will  be  found 
collected.  It  is  said  by  Judge  Dillon,  in  his  excellent  work 
above  cited,  "  that  in  determining  the  quantum  of  damages, 
regard  must  always  be  had  to  any  special,  constitutional,  or 
statutory  provisions  relating  to  the  subject,  and  the  previous 
■course  of  decision  in  which  those  provisions  have  not  un- 
irequently  originated." 

It  seems  to  me  that  this  wise  rule  of  construction,  applied 
to  this  statute,  will  settle  this  question  satisfactorily. 

Our  constitution.  Article  I,  sec.  16,  ordains,  that  private 
property  shall  not  be  taken  for  public  use  without  just  com- 
pensation. Article  IV,  sec.  7,  ^  9,  further  provides,  that  indi- 
vidual or  private  corporations  shall  not  be  authorized  to  take 
private  property  foB  public  use  without  just  compensation 
first  made  to  the  owners.  We  have  no  clause  excluding  bene- 
fits in  the  consideration  of  the  compensation  to  be  made. 
What,  therefore,  is  a  just  compensation  is  left  for  legislative 
enactment  or  judicial  determination. 

The  distinction  in  the  two  charters  in  this  case  in  the 
methods  of  assessing  damages  to  the  land  owners,  by  which 


300  NEW  JERSEY  SUPREME  COURT. 

Swayze  v.  N.  J.  Midland  Railway  Co. 

benefils  are  to  be  estimated  under  the  one  charter,  and  no 
mention  of  benefits  is  made  in  the  other,  and  the  express  pro- 
vision bv  which  lands  in  Sussex  county  are  to  be  assessed 
under  the  one  charter  and  not  under  the  other,  indicate  a  dis- 
tinct legislative  intention  that  in  Sussex  county  benefits  shall 
not  be  considered  or  allowed,  otherwise  the  j)roviso  is  of  no 
effect.  Under  the  statute  concerning  public  roads,  approved 
March  1st,  1850,  which  merely  directed  that  the  surveyors 
should  make  an  assessment  of  the  damages  the  owner  of  land 
would  sustain  by  laying  out  or  altering  a  public  road  or 
highway,  it  has  been  held  by  this  court,  that  the  surveyors 
were  not  bound  to  deduct  from  the  amount  of  damages  sus- 
tained the  value  of  the  benefits  derived,  and  to  award  only 
the  excess.  Slate  v.  Miller,  3  Zab.  383  ;  Williamson  v.  Am- 
weJl,  4  Dulcher  271. 

But  in  the  act  of  March  22d,  1860,  it  is  said  in  the  pre- 
amble, "  whereas  excessive  damages  have  in  many  instances 
been  assessed  on  land  or  real  estate  taken  for  roads,  under 
the  provisions  of  the  act  to  which  this  is  a  supplement,  &c." 
Sectron  1  enacts,  that  thereafter  the  surveyors  shall  assess  the 
owner's  damages  over  and  above  the  advantage  that  will,  in 
their  judgment,  accrue  to  such  owner. 

This  would  seem  to  be  a  more  just  and  equitable  method 
of  estimating  the  damages  the  land  owner  will  sustain,  by 
allowing  such  as  are  above  the  special  and  peculiar  benefits  he 
will  receive,  and  it  is  difficult  to  see  why  he  should  have 
any  more.  It  is  the  measure  of  his  actual  loss  or  injury. 
But  this  charter  under  consideration  has  fixed  another  mode 
of  estimating  damages  in  a  marked  and  peculiar  manner. 

The  proviso  in  the  3d  section  of  the  act  incorporating  the 
New  Jersey,  Midland  Railway  Company,  requiring  the  road 
to  be  laid  out  in  Sussex  county,  under  the  charter  of  the 
New  Jersey  Hudson  and  Delaware  Railroad  Company,  is  not 
fulfilled  either  in  terms  or  effect,  by  the  report  of  an  assess- 
ment made  under  the  charter  of  the  New  Jersey  Western 
Railroad  Company,  which  in  express  words  states  that  the 


JUNE  TERM,  1873.  301 

Excelsior  Carpet  Lining  Co.  ads.  Potts. 

commissioners  have  taken  into  consideration  the  benefits  to 
the  owners  from  such  raih'oad. 

Another  reason  assigned  for  reversal,  that  the  commis- 
sioners proceeded  in  the  absence  of  said  Swayze,  and  acted 
without  due  and  legal  notice  to  him,  is  not  sustained  hy 
the  papers  before  us.  There  is  proof  by  affidavit,  that  the 
notice  of  the  meeting  of  the  commissioners  was  duly  served 
on  him,  and  they  report  that  they  viewed  and  examined  the 
lands  and  heard  the  allegations  of  the  parties,  and  in  the 
presence  and  on  notice  to  the  parties  attending,  adjourned  to 
a  certain  hour,  day,  and  place,  and  then  and  there  appraised 
and  assessed  the  value  of  the  land  and  damages.  In  the 
absence  of  any  contradictory  proof  this  is  sufficient. 

The  report  of  the  commissioners  is  set  aside. 

Cited  in  Butler  v.  Sewer  Comm'rs,  10  Vr.  665  ;  Crater  v.  Frills,  15  Vr.  374. 


THE  EXCELSIOR  CARPET  LINING  COMPANY  ads.  BENJAMIN. 

C.  POTTS. 

Where  a  reference  is  ordered  by  the  court,  with  the  consent  of  parties, 
the  report  of  the  referee  will  be  controlled  as  the  verdict  of  a  jury 
would  be,  and  set  aside  if  unsupported  by  the  evidence. 

[See  rule  of  Supreme  Court,  June  Term,  1873,  by  which  the  submission! 
may  be  conclusive  or  otherwise.] 


On  motion  for  rule  to  show  cause  why  the  report  of  the 
referee  should  not  be  set  aside. 

Argued  at  February  Term,  1873,  before  Justices  Wood- 
hull,  Van  Syckel  and  Scudder. 

For  the  motion,  I.  W.  Sciidder. 

For  the  plaintiff,  J.  Linn. 

Vol.  vil  19 


302  NEW  JERSEY  SUPREME  COURT. 

Excelsior  Carpet  Lining  Co.  ads.  Potts. 

The  opinion  of  the  court  was  delivered  by 

ScUDDER,  J.  The  issue  in  this  case  coming  on  for  trial  at 
the  Circuit  Court  of  Essex  county,  it  was  ordered  by  the 
court  upon  the  written  consent  of  the  attorneys,  that  it  be 
referred  to  Jacob  Weart,  Esq.,  to  hear  and  determine  the 
some,  and  make  his  report  thereon  to  tiie  court,  according  to 
law.  The  report  was  made  February  22d,  1873,  allowing 
the  plaintiff  a  balance  of  §1010,  with  interest,  amounting  in 
all  to  ^1092.70. 

The  motion  to  set  aside  the  report  is  based  upon  the  allega- 
tion that  the  finding  of  the  referee  is  against  the  weight  of 
evidence.  Before  considering  this  question,  it  is  necessary  to 
determine  the  point  raised  by  the  plaintiff's  counsel,  that  the 
reference,  although  made  by  an  order  of  the  court,  was  by 
the  written  consent  of  the  parties,  and  that  they  are  concluded 
"by  the  report  of  the  referee.  These  references  have  become 
more  frequent  in  the  practice  at  our  circuits,  of  late  years, 
than  formerly,  because  of  the  great  increase  in  the  amount  of 
business,  and  they  are  resorted  to  both  in  and  out  of  the 
court,  and  for  the  convenience  of  the  parties.  Where  matters 
of  account  are  referred  under  practice  act  (§§  201,  202)  with- 
out consent  of  parties,  provision  is  made  for  a  dissent  from  the 
I'eport  of  the  referee,  and  a  trial  by  jury.  But  we  have  no 
statute  regulating  references  ordered  by  the  court,  by  the 
consent  of  parties.  While  the  former  practice  was  to  treat 
such  references  as  voluntary  submissions  to  a  tril)unal  chosen 
by  the  parties  themselves,  and  conclusive  as  the  awards  of 
arbitrators,  a  different  rule  has  gradually  found  favor  in  some 
of  our  courts,  where  the  pressure  of  business  has  been  great- 
est, and  the  reports  of  referees  have  been  controlled  as  the 
verdicts  of  juries  would  be,  and  set  aside  where  they  are 
unsupported  by  the  evidence;  or  if  the  referee  must  have 
contravened  some  rule  of  law  in  reaching  the  conclusion. 

This  practice  has  been  sanctioned  by  this  court  in  the  case 
of  Fitch  V.  Archibald,  5  Butcher  160,  by  express  decision  ; 
and  in  more  recent  cases  it  has  been  acquiesced  in  without 
discussion.  In  November  Term,  1872,  the  report  of  a  referee 
appointed  by  consent  of  parties,  was  set  aside  in  Huttou  v. 


JUNE  TERM,  1873.  803 

Excelsior  Carpet  Lining  Co.  ads.  Potts. 

"West  Jersey  Railroad  Company,  because  the  report  was  clearly 
against  the  weight  of  testimony. 

Whatever  may  be  our  misgivings  as  to  the  correctness  of 
this  later  practice  upon  principle,  or  in  policy,  it  is  now  too 
late  to  turn  our  steps  backward  into  the  old  paths,  without 
more  manifest  tokens  of  its  injustice  or  impolicy,  than  any 
that  have  yet  appeared. 

We  shall  therefore  hold,  as  in  Fitch  v.  Archibald,  that  the 
report  of  a  referee  appointed  by  the  court,  by  consent  of 
parties,  is  entitled  to  the  same  weight  as  the  verdict  of  a  jury 
upon  the  facts  of  the  case. 

The  facts,  as  they  appear  in  the  evidence  before  the  referee, 
are  few.  The  plaintiff,  Benjamin  C.  Potts,  and  Israel  D. 
Condit  were  engaged,  as  a  firm,  in  the  manufacture  of  paper, 
at  Millburn.  In  July,  1871,  it  was  proposed  to  dissolve  this 
firm,  and  certain  parties  in  New  York  were  to  become  asso- 
ciated with  Condit  and  Potts  in  the  manufacture  of  certain 
articles  of  carpet  lining,  which  the  Excelsior  Carpet  Lining 
Company  owned  or  controlled  by  letters  patent.  An  agree- 
ment was  first  prepared,  by  which  Potts  was  to  be  the  prac- 
tical manager  at  the  mill,  and  to  receive  a  salary  of  $1200 
per  year,  and  one-fourth  share  of  the  profits.  This  agreement 
was  not  executed.  By  an  arrangement  between  the  company 
and  Condit,  the  machinery  was  put  in  at  the  expense  of  the 
Excelsior  company,  and  Potts  acted  for  about  six  months  as 
superintendent  in  placing  the  works,  visiting  Baltimore,  Bos- 
ton, and  other  cities,  to  examine  similar  faetories.  He  had 
no  previous  knowledge  of  the  machinery  or  patented  process, 
•and  it  appears,  that  while  experimenting,  and  when  completed 
under  his  direction,  it  did  not  succeed  in  making  the  goods. 
He  received  §300  in  payments,  at  different  times.  He  was 
discharged,  and  claimed  compensation  for  his  services  as  an 
expert,  or  engineer  in  setting  the  machinery,  &c.  He  was  by 
profession  a  civil  engineer.  His  claim  was  $10  a  day  for  his 
services ;  while  the  company  claim  that  he  was  working  for 
Condit,  under  an  agreement  to  pay  at  the  rate  of  $1200  per 
year,  or  $100  per  mouth. 


304  NEW  JERSEY  SUPREME  COURT. 

Curtis  V.  Steever. 

It  was  also  claimed,  and  not  denied,  that  some  of  the  offi- 
cers of  the  company  had  told  him  he  should  be  paid  for  ser- 
vices while  he  was  there  engaged  at  the  machinery,  and  gave 
him  directions  about  the  work.  These  are  the  main  facts, 
and  sufficient  to  show  that  the  principal  matter  of  dispute  be- 
tween the  parties  was,  whether  there  was  an  express  contract 
for  a  certain  sum  to  be  paid  for  these  services,  or  whether 
there  was  only  an  implied  contract  to  pay  what  his  labor  was 
worth,  and  if  the  latter,  what  was  a  reasonable  compensation. 
He  claimed  $10  per  day,  while  the  company  denied  that  his 
work  was  worth  anything,  asserting  that  he  had  largely  dam- 
aged them  by  his  want  of  skill.  There  was  testimony  on 
both  sides,  and  after  reading  and  considering  it,  my  conclu- 
sion is,  that  there  is  not  that  clear  preponderance  of  proof  on 
the  part  of  the  defendants,  nor  new  evidence  discovered  and 
shown,  that  would  justify  this  court  in  setting  aside  the  re- 
port of  the  referee. 

The  motion  is  therefore  denied^ 

Cited  in  Bealtie  v.  David,  11  Vr.  102. 


ANN  CURTIS,  EXECUTRIX,  v.  EDGAR  Z.  STEEVER. 

Tlie  proceedings  under  the  attachment  act.  being  special  and  statutory,, 
the  proper  remedy  for  review  is  by  certiorari. 

Where  the  return  to  the  writ  of  attachment  shows  that  shares  of  stock, 
standing  in  the  name  of  a  third  person,  and  in  the  name  of  the  debtor's 
wife,  have  been  taken,  the  attachment  will  not  be  set  aside  on  motion, 
as  to  these  shares,  where  it  is  alleged  there  was  a  fraudulent  transfer 
by  the  debtor  to  hinder,  delay,  and  defraud  creditors. 


Attachment  in  case.  On  certiorari  to  the  Burlington  cir- 
cuit. 

A  writ  of  attachment  was  issued  out  of  the  Circuit  Court 
of  Burlington  county,  at  the  suit  of  the  plaintiff,  against  the 
property  and  estate  of  the  defendant. 


JUNE  TERM,  1873.  305 

Curtis  V.  Steever. 

June  13tli,  1870,  the  sheriff  of  said  county  attached,  and 
with  the  assistance  of  a  freeholder,  made  an  inventory  and 
appraisement  of  the  defendant's  property  in  the  hands  of 
George  W.  Steever,  secretary  and  treasurer  of  the  Borden- 
town  Gas  Light  Company,  of  Bordentown,  New  Jersey,  as 
follows:  "  Thirly-five  shares  of  stock  in  said  company,  par 
value  $25 — $875.  Also  all  his  right,  title,  and  interest  in 
and  to  six  hundred  and  fifty-four  shares  of  stock  in  said  com- 
pany, held  in  the  name  of  defendant's  wife,  Margaret  W. 
Steever,  par  value  $25 — $16,350;  forty-six  shares  of  stock 
in  said  company,  certificate  No,  121,  in  the  name  of  Jerome 
Buck,  par  value  $25— $1150." 

On  the  return  of  the  writ  it  was  moved  to  set  aside  the  at- 
tachment, as  to  the  last  two  items  specified  in  the  inventory, 
to  wit,  the  stock  standing  in  the  name  of  Margaret  W.  Steever 
and  Jerome  Buck.     The  court  denied  the  motion. 

The  writ  and  proceedings  thereupon  were  certified  and  sent 
to  this  court  upon  certiorari. 

Argued  at  February  Term,  1873,  before  Justices  Wood- 
hull,  Van  Syckel  and  Scddder. 

For  the  plaintiff  in  cettiorari,  G.  D.  W.  Vroom, 
For  the  defendant,  G.  S.  Cannon. 

The  opinion  of  the  court  was  delivered  by 

ScuDDER,  J.  The  purpose  of  the  motion  in  the  Circuit 
■Court,  and  the  result  sought  to  be  attained  here,  is  to  relieve 
the  shares  of  stock  of  the  Bordentown  Gas  Light  Company, 
standing  in  the  names  of  Margaret  W.  Steever  and  Jerome 
Buck,  respectively,  from  the  lien  of  the  attachment  at  the 
suit  of  Ann  Curtis,  executrix,  against  Edgar  Z.  Steever. 

There  is  no  doubt  that  it  is  within  the  power  of  this  court 
to  control  the  abuse  of  the  writ  of  attachment  in  a  court  of 
inferior  jurisdiction  ;  nor  can  there  be  a  question  that  the 
plaintiff  has  adopted  the  proper  form  of  remedy.  The  pro- 
•ceedings  under  our  attachment  act  are  special  and  statutory 


306  NEW  JERSEY  SUPREME  COURT. 

Curtis  V.  Steevef . 

not  according  to  the  course  of  the  common  law,  and  therefore 
the  proper  method  of  review  is  by  the  writ  of  certiorari. 
Such  has  been  the  practice  of  tiiis  court.  Brunson  v.  ShinUy 
1  Green  250;   Thompson' v.  Easlburn,  1  Harr.  100. 

If  the  return  shows  upon  its  face  that  property  has  been 
attached  which  the  sheriff  could  not  legally  take  under  the 
writ,  to  that  extent  the  ie.\y  may  be  set  aside,  and  the  pro- 
perty thus  taken  be  relieved  from  the  charge.  It  is  also  trae 
that  under  our  statute  only  the  rights  and  credits,  moneys 
and  effects,  goods  and  chattels,  lands  and  tenements  of  the 
defendant  can  be  attached.  But  it  is  said  that  stock  in  a 
private  corporation  cannot  be  attached  unless  authorized  by 
express  statute ;  that  a  particular  power  was  required  under 
the  statute  relating  to  executions,  to  warrant  the  seizure  and 
sale  of  such  stock.     Nix.  Dig.  294,  §  7.* 

This  statute  respecting  executions  (§  1,)  issued  upon 
judgments,  directs  that  they  may  be  against  the  body,  or 
against  the  goods  and  chattels,  or  against  the  goods  and  chat- 
tels, lands,  tenements,  hereditaments  and  real  estate  of  the 
defendant.  As  there  -might  be  doubt  whether  certain  kinds 
of  personalty  were  included  in  the  terms  goods  and  chattels^ 
moneys,  bank  notes,  stocks,  &c.,  were  distinctly  specified  as 
subject  to  levy.  The  words  used  in  the  attachment  act  are 
much  broader  and  more  comprehensive — "  Rights  and  credits, 
moneys  and  effects,  goods  and  chattels,  lands  and  tenements," 
of  the  debtor  may  be  attached.  Even  if  the  stock  taken  in  this 
case  should  be  regarded  as  a  chose  in  action,  {^A.  &  A.  on  Cor  p. 
560,)  there  the  rights  and  credits  which  belong  to  this  species 
of  property,  can  be  attached  under  this  statute.  To  avoid 
the  very  conclusion  which  has  sometimes  been  stated,  that 
only  property  that  can  be  sold  by  the  sheriff  under  execution 
cm  be  levied  upon  under  this  process,  our  statute  (§  36,) 
enacts  that  after  the  sale  of  the  goods  and  chattels,  lands  and 
tenements,  if  the  moneys  arising  therefrom  be  not  sufficient 
to  satisfy  the  debts,  then  the  auditors  shall  assign  to  the 
plaintiff  and  creditors  the  choses  in  action,  rights  and  credits- 
of  the  defendant,  in  proportion  to  their  respective  debts.     Of 

*i2ey.,p.  389,  §4. 


JUNE  TERM,  1873.  307 

Curtis  V.  Steever.. 

course  they  cannot. distribute  what  cannot  be  attached.  This  is 
recoguized  in  the  case  referred  to  in  the  plaintiff's  argument. 
State  V.  Warren  Foundry  and  Machine  Company,  3  Vroora  439. 

Stock  had  there  been  taken  und«r  attachment,  and  the  court 
say  that  "  if  the  sale  of  the  stock,  as  made,  can  be  held  to  be 
valid,  which  is  not  necessary  to  decide,  it  must  be  on  the 
ground  that  what  was  done  amounted  to  a  virtual  assignment 
of  choses  in  action  to  the  relator,  or  creditor  authorized  by  the 
36th  section  of  the  attachment  act,"  Thus  while  the  3oth 
section^  of  the  act  does  not  authorize  the  sale  of  choses  in 
action,  rights  and  credits,  the  36th  section  directs  the  distri- 
bution ;  and  hence  the  authority  to  attach  iS  clearly  inferred, 
and  the  construction  of  section  1  made  very  plain ;  but  the 
terms  used  include  stock,  whether  it  is  comprised  within  the 
words  "  goods  and  chattels,"  or  it  is  to  be  considered  a  chose 
in  action  within  the  meaning  of  the  words  rights  and  credits. 

In  the  case  above  cited,  the  question  was  not  as  to  the 
legality  of  the  seizure  of  the  stock,  but  the  propriety  of  the 
remedy  by  mandamus  to  compel  the  company  to  transfer  the 
stock  standing  in  the  name  of  a  third  person,  which  had  been 
seized  and  sold  as  the  property  of  the  defendant.  The  court 
decided  that  as  it  was  a  doubtful  question  of  fraud,  there  was 
no  authority  for  issuing  a  mandamus,  and  that  a  suit  at  law, 
or  a  bill  in  equity  was  the  appropriate  remedy. 

This  case  also  brings  us  to  the  very  point  for  detewiiina- 
tion  in  the  present  plaint.  Stock  of  the  Warren  Foundry 
and  Machine  Company  standing  in  the  name  of  Day,  had 
been  attached  by  the  creditors  of  Miller,  and  sold  by  the 
creditors  to  Bush,  the  relator.  It  was  said  that  Miller  had 
transferred  the  stock  to  Day,  his  son-in-law,  just  before  the 
issuing  of  the  attachment,  and  that  it  was  done  to  hinder, 
delay  and  defraud  Miller's  creditors.  The  court  did  not  say 
that  if  this  were  so  the  attachment  would  be  void.  It  is 
alleged  in  the  present  case  that  the  defendant  in  attachment, 
Edgar  Z.  Steever,  prior  to  the  issuing  of  the  writ  by  Ann 

*  Rev.,  p.  51,  I  52. 


308  NEW  JERSEY  SUPREME  COURT. 

Curtis  V.  Steever. 

Curtis,  executrix,  transferred  the  stock  in  dispute  to  his  wife, 
Margaret  W.  Steever,  and  to  Jerome  Buck,  to  hinder,  delay, 
and  defraud  his  creditors.  This  is  denied  upon  their  part,  but 
it  is  an  issue  to  be  tried  between  them  in  some  form,  and  there 
is  propriety  in  hokling  the  property  until  the  issue  is  deter- 
mined. If  the  question  be  asked  as  was  done  in  the  argument 
in  tliis  case:  Will  the  court  then  permit  property,  which  does 
not  belong  to  the  defendant,  to  be  seized  under  attachment? 
Certainly  not.  But  that  is  begging  the  question  between 
these  parties.  The  relator  insists  that  by  our  statute  of  frauds 
and  perjuries,  (Nix.  Dig.  355)*  a  transfer  of  stock  to  defraud 
creditors  is  no  transfer  as  against  them,  but  void.  This  is  also 
true.  It  is  difficult  to  see  how  this  writ  can  be  made  eifective 
against  absconding  debtors,  if  just  prior  to  leaving  they  can 
put  all  their  property  into  the  hands  of  others,  who  may  hold 
and  dispose  of  it  in  defiance  of  this  prompt  remedy  which  the 
statute  has  provided  against  such  debtors. 

By  section  60,  this  act  must  be  construed  in  all  courts  of 
judicature  in  the  most  liberal  manner,  for  the  detection  of 
fraud,  the  advancement  of  justice,  and  the  benefit  of  creditors. 

In  all  cases  of  doubtful  title,  the  plaintiff  in  execution  and 
in  attachment  may  proceed  at  his  peril,  and  make  seizure  of 
property  of  which  some  other  person  than  the  debtor  is  the 
ostensible  owner,  and  in  answer  to  the  trespass  may  show  fraud 
in  the  title. 

Garretson  v.  Kane,  3  Dutcher  208,  holds  that  if  a  bill  of 
sale  was  in  fact  and  in  law  made  to  hinder,  delay  or  defraud 
creditors,  a  creditor  who  seizes  the  goods  by  virtue  of  an 
attachment  or  execution,  may  show  the  fraud  in  an  action  of 
trespass.  The  fraud  must,  however,  be  against  him  as  a 
■creditor,  and  not  against  the  debtor.  If  it  be  true  in  this 
case,  that  the  stock  has  been  transferred  by  the  debtor  to  the 
present  holders,  in  fraud  ©f  creditors,  there  is  and  there 
should  be  no  legal  objection  to  the  seizure  of  the  stock;  and 

*Eev.,  p.  444. 


JUNE  TERM,  1873.  309 

State,  Rutherford  Park  Association,  Pros.,  v.  Township  of  Union. 

the  court  should  give  its  aid  to  discover  the  fraud,  and  hold 
the  property  until  this  can  be  determined. 

The  case,  like  that  of  Boyd  and  King,  decided  at  the  last 
term  of  this  court,  does  not  raise  the  question  whether  a 
mere  equitable  right  can  be  attached ;  for  if  there  has  been 
a  fraudulent  transfer  of  this  stock  which  has  been  attached, 
then  such  transfer  is  void  at  law,  as  well  as  in  equity,  and 
the  creditors  have  their  legal  remedy  to  annul  the  covinous 
title. 

This  result  to  which  we  have  come,  applies  to  Jerome 
Buck,  who,  so  far  as  appears  in  the  return,  has  no  relation- 
sliip  to  the  debtor.  It  is  also  applicable  to  the  stock  held  in 
the  wife's  name.  It  is  not  necessary  to  discuss  the  question, 
whether  formerly,  or  as  the  law  now  stands,  the  choses  in 
action  of  the  wife  can  be  seized  under  attaciiment  by  her 
husband's  creditors,  before  he  has  reduced  them  into  posses- 
sion. If  these  shares  standing  in  her  name  are,  as  she  claims, 
part  of  her  separate  estate  in  good  faith,  they  cannot  be  taken 
from  her  by  this  attachment,  and  the  plaintiff  may  be  liable 
to  her  for  the  attempted  taking ;  but  if  she  holds  them  by  a 
fraudulent  transfer,  made  to  hinder,  delay  and  defraud  her 
husband's  creditors,  she  cannot  and  should  not  hold  them. 

Let  the  writ  of  certiorari  be  dismissed,  with  costs. 


STATE,   RUTHERFORD  PARK  ASSOCIATION,   PROSECUTOR, 
V.  TOWNSHIP  OF  UNION,  BERGEN  COUNTY. 

1.  Lands  must  be  assessed  in  the  name  of  the  owner,  at  the  time  when 
the  assessment  is  to  be  commenced. 

2.  If  lands  are  not  designated  by  such  short  description  as  will  be 
sufficient  to  ascertain  the  location  and  extent,  and  a  sale  thereof  can- 
not be  made,  the  tax  for  the  same  may  still  be  collected  by  warrant 
against  the  goods,  chattels  and  person  of  the  owner. 


310  NEW  JERSEY  SUPREME  COURT. 

State,  Rutherford  Park  Association,  Pros.,  v.  Township  of  Union. 

3.  A  mistake  in  the  name  of  the  owner  may  be  corrected  where  he  has 
notice. 

4.  When  the  true  owner  has  notice,  and  is  a  party  to  the  record,  the 
court  will  reverse  or  affirm,  in  part  or  in  the  whole,  the  tax  against 
his  lands,  according  to  the  justice  of  the  case. 

[Case  distinguished  from  State  v.  Hardin,  5  Vroom  79.] 


On  certiorari  to  George  W.  Petty,  one  of  the  constables  of 
the  township  of  Union,  in  the  county  of  Bergen,  to  bring  up 
a  certain  tax  warrant  issued  by  the  township  committee,  to 
make  $476  50,  for  the  year  1870,  of  lands  alleged  to  be  the 
property  of  Knapp  &  McPherson,  situate  in  the  said  township. 

Argued  at  February  Term,  1873,  before  Justices  Wood- 
hull,  Vax  Syckel  and  Scudder. 

For  the  prosecutors,  C.  S.  Soofielii. 

For  the  defendants,  Potts  &  Linn. 

The  opinion  of  the  court  was  delivered  by 

Scudder,  J.  This  tax  warrant  is  illegal.  The  lands  as- 
sessed are  a  hotel  property  in  Rutherford  Park,  comprising 
about  two  acres,  with  the  buildings  thereon,  occupied  by 
Knapp  &  McPherson.  There  was  an  agreement  between 
them  and  the  association  for  the  purchase  and  sale  of  these 
lands,  for  the  price  of  $50,000.  The  deed  had  not  been  exe- 
cuted and  delivered,  and  the  purchase  money  had  not  been 
paid,  or  secured  to  be  paid.  When  the  assessor  applied  to  the 
parties  in  possession,  Knapp  &  McPherson,  for  their  taxable 
property,  he  was  told  by  them  the  position  of  the  property,  as 
it  then  stood.  He  was  truly  informed  that  there  was  only  an 
agreement  for  sale ;  that  $5000  on  account  of  the  purchase 
money  of  $50,000  had  been  paid,  and  that  the  balance,  $45,- 
000,  was  unpaid  and  unsecured. 

The  assessor  entered  the  land  on  his  duplicate  to  Knapp  & 
McPherson,  or  "  R.  P.  Association,"  "  value  $50,000."     He 


JUNE  TERM,  1873.  311 

State,  Kutherford  Park  Association,  Pros.,  v.  Township  of  Union. 

added  $45,000,  the  balance  agreed  to  be  paid  for  the  prop- 
erty after  deducting  the  $5000  paid  on  account,  to  the  taxa- 
ble personal  property  of  the  Rutherford  Park  Association. 

His  duty  was  to  assess  the  land  in  the  name  of  the  owners, 
by  section  one  of  the  act  of  March  17th,  1854,  and  by  the 
act  of  1866  ;  and  this  assessment  must  relate  to  the  day  fixed 
by  the  statute  for  its  commencement.  State  v.  Hardin,  5 
Vroom  79. 

On  May  20th,  1870,  this  land  belonged  to  the  Rutherford 
Park  Association. 

This  association  paid  the  tax  cfn  $45,000,  part  of  the  value 
of  this  lot  of  laud  assessed  to  them  as  personalty,  and  the 
township  committee  issued  their  warrant  to  the  constable  to 
collect  the  whole  value,  $50,000,  out  of  the  property,  as  the 
lands  of  Kuapp  &  McPherson,  non-resident  owneKS,  under 
section  three  of  the  act  of  March  17ih,  1854. 

This  proceeding  is  oppressive  and  illegal.  If  it  should  be 
sustained,  the  township  would  receive  from  the  association' 
the  tax  on  $45,000,  part  of  the  value  of  the  land  assessed  as 
personalty,  and  the  total  value,  $50,000,  assessed  as  realty, 
making  $95,000  taxable  property,  instead  of  $50,000,  the 
actual  amount. 

It  is  claimed  on  the  part  of  the  township  that  this  result 
is  caused  by  the  neglect  or  refusal  of  Knapp  &  McPherson 
to  make  oath  to  their  indebtedness,  and  thereby  obtaining  a 
reduction  from  the  value  of  the  land.  But  they  were  not  the 
owners,  and  could  not  make  the  required  oath  that  the  sunv 
of  $45,000  was  due  and  owing  to  the  association  under  sec- 
tion twenty  of  the  act  of  April  11th,  1866.  Nix.  Dig.  955. 
By  this  statute  the  debt  must  be  due  and  owing  to  entitle 
them  to  a  deduction,  and  this  would  not  be  until  the  title  had 
passed. 

Again,  if  they  were  non-residents  there  could  be  no  de- 
duction of  any  debt  from  the  valuation  of  their  land  here 
State  v.  McChesney,  6  Vroom  548. 

But  another  difficulty  is  found  in  that  the  lands  are  no' 
designated  by  such  short  description  as  will  be  sufficient  to- 


312  NEW  JERSEY  SUPREME  COURT.' 

Statft,  Rutherford  Park  Association,  Pros.,  v.  Township  of  Union. 

ascertain  the  location  and  extent  thereof.  This  designation  is 
required  by  section  one  of  the  act  of  March  17th,  1854,  and 
it  must  be  followed  in  the  warrant.  The  duplicate  certified 
to  us  has  no  such  description,  nor  is  there  any  addition  thereto 
by  way  of  supplement,  or  otherwise.  The  only  description 
found  in  it  is  "  Knapp  &  McPherson,  or  R.  P.  Association  ; 
number  of  acres,  2.  Valuation  of  real  estate,  $50,000. 
Amount  taxable,  $50,000."  There  is  nothing  here  to  ascer- 
tain the  location  and  extent,  as  required  by  the  statute.  It 
does  not  even  say  that  the  lands  are  in  the  tract  owned  by 
the  Rutherford  Park  Association,  nor  by  the  number  of  the 
lot,  or  its  location  on  the  tract  have  we  any  description  by 
which  it  can  be  identified.  A  short  description  would  com- 
ply with  the  terms  of  the  statute,  but  none,  excepting  the 
words  "  number  of  acres,  2,"  is  certainly  not  sufficient.  The 
warrant  to  be  issued- by  the  township  committee  (section  three, 
act  1854,)  for  the  sale  of  the  lands  "of  which  the  assessor's 
description  shall  be  therein  set  forth,"  is  the  only  means  pro- 
vided for  the  collection  of  the  tax,  by  making  it  a  charge  on 
the  land  assessed.  No  other  description  can  be  used,  and 
any  warrant  therefore,  issued  in  this  case  by  them,  would  be 
indefinite  and  ineffectual. 

But  if  these  particulars  were  given,  the  warrant  could  not 
be  used  for  the  sale  of  the  lands  of  these  prosecutors,  the 
Rutherford  Park  Association,  for  they  do  not  reside  out  of  the 
state,  nor  are  they  a  foreign  corporation,  residing  out  of  the 
county  in  which  tiie  land  is  located. 

The  tax  warrant,  and  the  proceedings  under  it  for  the  sale 
of  this  land  as  the  property  of  Knapp  &  McPherson,  or  as 
the  property  of  these  prosecutors,  must  be  set  aside. 

It  is  claimed,  on  the  part  of  the  prosecutors,  that  this  dis- 
poses of  the  case,  and  that  no  tax  can  be  collected  against 
them  for  this  land,  under  the  ruling  of  this  court  in  State  v. 
Hardin.  But  this  is  not  so.  The  prosecutors  are  samed  on 
the  duplicate  as  owners.  The  entry  is  "Knapp  and  Mc- 
Pherson, or  R.  P.  Association."  It  is  not  denied,  and  the 
affidavits  taken  show,  that  this  latter  description  means  the 


JUNE  TERM,  1873.  313 

State,  Eutherford  Park  Association,  Pros.,  v.  Township  of  Union. 

Rutherford  Park  Association.  They  had  notice  of  tills  tax, 
and  are  here  to  avoid  it.  In  State  v.  Hardin,  the  true  owner 
had  no  notice  at  any  stage  of  the  proceedings,  and  was  not 
before  the  court  to  have  his  right  determined.  The  charge 
by  hen  on  the  land  being  illegal,  the  tax  could  not  be  enforced 
against  him  when  he  was  not  a  party  to  the  record,  and  had 
no  notice. 

It  differs,  therefore,  from  this  case,  where  the  party  to  be 
charged  is  a  party  to  the  record,  and  has  notice.  If  the  pro- 
ceedings are  ineffectual  to  make  the  tax  from  the  land,  it  may 
still  be  collected  as  a  general  tax  against  the  true  owner  who 
is  named  in  the  duplicate. 

I  see  no  objection,  therefore,  to  the  issue  of  another  warrant 
{Acts  of  April  1st,  1868,^.  559,  and  Laws  of  1869,  p.  612,) 
against  the  goods  and  chattels  of  the  Rutherford  Park  Asso- 
ciation for  the  tax  upon  this  land,  which  is  sufiBciently  desig- 
nated for  that  purpose  by  the  number  of  acres  in  the  duplicate.. 
The  requirement  under  section  ten  of  the  act  of  1866,  is  that 
the  assessor  shall  add  to  his  duplicate,  by  way  of  appendix,  or 
otherwise,  a  designation  of  the  real  estate  by  such  short  de- 
scription as  will  be  sufficient  to  ascertain  the  location  and 
extent  thereof,  only  in  cases  where  he  has  reason  to  suppose  it 
may  be  difficult  to  collect  the  tax  by  wanxmt  against  the  goods, 
chattels  and  pei'son,  and  proceedings  by  warrant  to  sell  the- 
lands  may  become  necessary.  If  he  has  no  reason  to  suppose 
there  will  be  difficulty,  an  assessment  like  the  present  will  be 
sufficient  for  a  warrant  against  the  goods  and  chattels  of  the 
prosecutors. 

But  it  would  be  unjust  that  this  new,  or  alias  warrant  should 
issue  for  the  whole  amount  of  tax  for  this  land,  upon  the  val- 
uation of  $50,000,  for  by  the  error  of  the  assessor  $45,000  of 
this  valuation  has  already  been  assessed  as  part  of  the  person- 
alty of  the  prosecutors,  and  this  tax  has  been  paid  by  them. 

With  the  facts  and  parties  before  us,  we  can  do  justice  in 
this  cause. 

By  section  two  of  the  act  of  1852,  [Nix.  Dig.  946)*  where 

*i2cr.,p.  1172,  I  148. 


314         NEW  JERSEY  SUPREME  COURT. 

State,  Rutherford  Park  Association,  Pros.,  v.  Township  of  Union. 

it  appears  satisfactorily  to  this  court  that  the  amount  or  value 
of  taxable  property  for  which  any  person  is  assessed  is  too 
great,  the  court  shall  amend  such  assessment,  and  reduce  the 
same  to  the  proper  and  just  amount,  and  thereupon  affirm  the 
same,  according  to  such  amendment  and  reduction,  and  reverse 
the  same  as  to  the  excess  thereof.  It  is  also  made  the  duty 
of  this  court,  by  the  act  relative  to  the  writ  of  certiorari,  ap- 
proved April  6th,  1871,  to  determine  disputed  questions  of 
fact  as  well  as  of  law,  and,  according  to  the  justice  of  the  case, 
to  reverse  or  affirm,  in  part  or  in  the  whole,  any  tax  or  assess- 
ment, or  other  proceedings. 

With  this  large  discretion  given  by  the  statute,  justice  can 
be  done  between  these  parties. 

The  tax  warrant  and  the  proceedings  thereon  are  set  aside. 
The  tax  is  affirmed  against  the  prosecutors  for  this  lot  of  land 
named  in  the  duplicate.  A  credit  of  $45,000,  paid  by  the 
prosecutors  on  the  mistaken  rating  of  this  amount  as  to  per- 
sonalty, must  be  deducted,  leaving  a  balance  of  $5000  unpaid 
and  collectible. 

Cited  in  State,  Hoey,  pros.,  v.  Collector,  (fee,  10  Vr.  75 ;  State,  Parker, 
pros.,  V.  Elizabeth,  10  Vr,  689 ;  Stale,  Allen,  pros.,  v.  Woodbridge,  13  Vr.  401. 


CASES   DETERMINED 


SUPREME  COURT  OF  JUDICATURE 


OF   THE 


STATE  OF  NEW  JERSEY, 

AT  NOVEMBER  TERM,  1873 


DUDLEY  S.  GKEGORY   Jk.,  ads.  ROBERT  WILSON. 

A  broker  procured  a  customer  f»r  another  broker,  with  the  understanding 
that  the  latter  should  charge  for  the  procuring  a  loan  of  money  at  a 
rate  prohibited  by  the  statute,  and  that  such  commissions  should  be 
divided  ;  held,  that  a  suit  would  not  lie  in  behalf  of  the  former  broker 
for  his  share  of  such  commLssions  against  the  latter  broker,  to  whom 
they  had  been  paid  by  the  customer. 


On  rule  to  show  cause  why  verdict  should  not  be  set  aside. 

The  verdict  was  based  on  the  following  conclusions  of  fact : 
That  each  of  the  parties  was  doing  a  separate  business  in  Jer- 
sey City,  as  brokers  in  real  estate  and  in  the  procuring  of 
loans  for  money. 

That  there  was  an  arrangement  between  them  that  for  any 
customer  furnished  by  plaintiff  to  defendant,  for  whom  the 
defendant  should  procure  a  loan,  the  commissions  should  Be 
equally  divided. 

That  in  accordance  with  such  arrangement,  the  defendant, 
in  1870,  procured  a  loan  of  ^28,000,  for  one  year,  for  Thomas 

315 


316  NEW  JERSEY  SUPRExME  COURT. 

Gregory  ads.  Wilson. 

Edmonston,  at  six  per  cent,  commission,  and  which  commis- 
sion was  paid  by  Edmonston  to  defendant  when  the  money 
was  received  by  Edmonston. 

That  Edmonston  was  a  customer  furnished  by  the  plaintiff 
to  defendant,  and  the  plaintiff  is  entitled  to  recover  one-half 
of  said  commissions,  unless  prevented  by  reason  of  section  five 
of  the  act  against  usury.  The  verdict  was  for  one-half  of  the 
commissions,  for  which  the  suit  was  brought. 

The  plaintiff  knew  when  he  furnished  the  customer,  that 
the  commissions  would  be  at  least  six  per  cent,  on  the  amount 
of  the  loan. 

The  following  question  was  certified  for  the  advisory 
opinion  of  this  court — 

Whether,  by  reason  of  section  five  of  the  usury  act,  the  ver-' 
diet  can  be  sustained  in  whole  or  in  part? 

Argued  at  June  Term,  1873,  before  Beasley,  Chief  Jus- 
tice, and  Justices  Dalrimple,  Depue  and  Van  Syckel. 

For  the  plaintiff,  E.  T.  Cowles. 

For  the  defendant,  /.  Dixon, 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  I  think  it  is  not  to  be  denied 
that  the  money,  which  is  the  subject  of  the  present  suit,  is 
the  proceeds  of  an  illegal  transaction.  The  fifth  section  of 
the  act  against  usury  denounces  a  penalty  against  every  broker 
who  shall  take  or  receive  more  than  the  rate  or  value  of  fifty 
cents  for  procuring  the  loan  or  forbearance  of  one  hundred 
dollars  for  a  year.  In  the  present  affair  six  per  cent,  pre- 
mium was  taken  from  the  borrower  by  the  defendant,  with 
the  knowledge  and  co-operation  of  the  plaintiff.  It  is  not,  at 
this  day,  open  to  any  question  that  a  provision  in  a  statute 
declaring  that  the  doing  of  an  act  shall  be  visited  by  a  pre- 
scribed penalty,  is  equivalent  to  an  announcement  that  such 
act,  if  done,  shall  be  illegal ;  so  that  if  the  borrower,  in  this- 


NOVEMBER  TERM,  1873.  317 

Gregory  ads.  Wilson. 

case  had  refused  to  pay  the  unlawful  commissious  agreed  upon, 
JO  action  could  possibly  have  lain  against  him  for  such  default. 
But  this  action  is  bottomed  on  the  proposition  that,  inasmuch 
as  the  money  has  come  to  the  hands  of  the  defendant,  and  the 
plaintiff  is  entitled  to  one-half  of  it,  the  original  transaction, 
out  of  which  it  arose,  cannot  be  gone  into,  or  at  all  events, 
cannot  affect  the  claim  in  suit. 

It  is  the  general  rule  of  the  law,  always  admitted  whenever 
the  subject  has  been  discussed,  that  a  court  of  justice  will  not 
lend  its  aid  to  the  enforcement  of  a  contract,  the  making  of 
which  is  prohibited,  or  which  is  directed  to  the  accomplish- 
ment of  any  unlawful  purpose.  But  while  this  salutary 
principle  is  thus  broadly  stated,  there  are  some  cases,  and  of 
the  highest  authority,  which  it  is  difficult  not  to  regard  as 
violations  of  its  spirit.  These  decisions,  as  a  class,  are  not 
harmonious,  and  some  of  the  earlier  of  them  have,  on  several 
occasions,  undergone  a  severity  of  judicial  criticism,  which 
approaches  closely  to  a  dissent  from  the  doctrines  which  they 
heek  to  establish.  Each  of  such  cases,  however,  claims  to 
stand  on  some  ground  that  makes  it  an  exception  to  the  gene- 
ral rule.  First  among  these  is  Tenant  v.  Elliott,  reported  in 
1  Bosanquet  &  Puller,  j)-  3.  The  defendant  was  a  broker, 
and  had  effected  an  illegal  insurance  for  the  plaintiff,  and  the 
ship  thus  insured  having  been  lost,  he  received  the  amount  of 
the  insurance  from  the  underwriters.  Having  refused  to  pay  ife 
over  on  demand,  to  the  plaintiff,  the  suit  was  brought,  which 
was  successful.  Eyre,  Chief  Justice,  saying:  "The  question 
is,  whether  he  who  has  received  money  to  another's  use  on 
an  illegal  contract,  can  be  allowed  to  retain  it,  and  that  not 
even  at  the  desire  of  tho.se  who  paid  it  to  him  ?  I  think  he 
cannot."  The  same  rule  of  decision  was  applied  in  Farmer 
V.  Russell  et  al.,  1  B.  &  P.  296,  where  the  fund  sought  to  be 
recovered,  and  which  was  outstanding  in  the  hands  of  a  third 
party,  was  the  product  of  an  act  which  was  indictable  and 
highly  criminal.  The  suit  was  against  a  carrier,  who  had 
carried  counterfeit  coin  for  the  plaintiff,  and  having  received 
pay  for  it  from  the  consignee,  refused  to  hand  it  over.     The 

Vol.  VII.  20 


318  NEW  JERSEY  SUPREME  COURT. 

Gpegory  ads.  Wilson. 

court  thought  the  case  could  not  be  distiuguished  from  the 
antecedent  one,  which  I  have  cited,  and  considered  the  sum 
claimed  as  so  much  money  had  and  received  by  the  carrier 
for  the  plaintiff,  and  that  the  original  transaction  did  not 
affect  the  rights  of  such  parties.  These  cases  were  founded 
on  the  theory  that  when  the  proceeds  of  an  illegal,  or  what  is 
the  same  thing,  a  criminal  act,  had  passed  into  the  possession 
of  a  third  party,  as  an  agent  for  the  transfer  of  the  money  to 
the  person  for  whom  it  was  deposited,  the  contract  implied  by 
law  that  such  money  would  be  paid  according  to  instructions, 
was  so  disconnected  with  the  original  transaction  as  to  be 
un vitiated  by  it. 

And  some  of  the  decisions  have  pushed  this  doctrine  even 
beyond  this  limit,  for  it  has  been  held  that  in  cases  where 
there  has  been  a  partnership  in  a  business  carried  on  in  vio- 
lation of  the  provisions  of  a  statute,  such  illegality  will  not 
bar  a  recovery  by  one  partner  against  the  other  in  a  bill  for 
an  account  of  the  gains  of  such  traffic.  Such  were  the  views 
of  Lord  Cottenham  in  Sharp  v.  Taylor,  2  Phillips  801.  In 
support  of  the  principle  on  which  the  judgment  in  this 
decision  was  rested,  the  only  authorities  cited  were  those 
already  named,  of  Tenant  v.  Elliott,  and  Farmer  v.  Russell, 
and  it  is  certainly  clear  that  these  cases  do  not  support,  to  the 
whole  extent,  the  doctrine  for  which  they  were  vouched. 
The  cases  cited  held  that  when  the  illegal  transaction  was 
completed,  and  the  gains  had  been  deposited  with  a  third 
party  in  the  course  of  transfer,  the  law  would  compel  a  pay- 
ment by  such  intermediate  agent;  in  advance  of  this,  Lord 
Cottenham  maintained  that  in  case  the  illicit  funds  remained 
in  the  hands  of  one  of  the  wrong  doers,  the  other  could  en- 
force his  right  to  a  division.  The  broad  ground  is  laid  and 
the  case  decided  upon  it,  that  there  is  a  "  difference  between 
enforcing  illegal  contracts  and  asserting  title  to  money  which 
has  arisen  from  them."  And  this  view  of  the  law  has  re- 
ceived the  sanction  of  high  judicial  authority  in  this  country. 
The  doctrine  of  the  last  cited  case  was  approved  of  by  the 
Supreme  Court  of  the  United  States  in  McBlair  v.  Gibbes,  17 


NOVEMBER  TERM,  1873.  319 


Gregorv  ads.  Wilson. 


How.  232,  and  was  signally  enforced  if  not  considerably 
transcended,  by  the  same  tribunal  in  Brooks  v.  Martin^  2 
Wallace  70.  In  New  York  the  adjucations  are  in  the  same 
vein.  Woodworih  v.  Bennett,  43  N.  Y.  237,  and  Merritt  v. 
Millard,  4  Keyes  208,  and  vouchers  for  the  proposition 
that  where  money  derived  from  any  illegal  contract  has 
been  placed  with  a  depositary  for  one  of  the  parties  to  it, 
such  contract  having  been  fully  executed,  an  action  to  re- 
cover such  money  by  the  party  for  whom  it  was  left,  will  be 
sustained. 

This  subject  has,  likewise,  quite  recently,  been  considered 
by  the  Vice-Chancellor,  in  the  case  of  Watson  v.  Murray,  8 
C  E.  Green  257.  The  bill  was  for  an  account  with  respect 
to  the  business  of  the  carrying  on  certain  lotteries  in  which 
the  complaint  alleged  he  was  a  partner.  It  appeared  in  the 
pleadings  that  the  lotteries  were  drawn  and  the  business  was 
transacted  in  states  where  such  doings  were  lawful.  It  was 
not  shown  whether  the  contract  of  partnership  was  entered 
•into  in  this  state  or  elsewhere.  The  bill  was  dismissed  on 
•demurrer,  on  the  ground  that  as  lotteries  were  in  hostility  to 
the  general  policy  of  this  state,  and  were  in  themselves  im- 
moral, our  courts  would  not  take  such  affairs  tinder  their 
protection,  although  they  were  legal  in  the  place  where  they 
had  been  transacted.  In  the  course  of  his  review  of  the  sub- 
ject, the  Vice-Chancellor,  as  I  interpret  his  remarks,  exhibits 
a  decided  disapprobation  of  the  extravagant  length  to  which 
some  of  the  decisions  had  gone  in  furtherance  of  illegal  trans- 
actions. 

But  it  til  us  appears  that  there  is  authority  entitled  to  the 
very  highest  consideration  in  favor  of  the  doctrine,  that  in 
<.'ases  where  an  illegal  thing  has  been  completely  done,  and 
the  money  growing  out  of  such  transaction  being  due  to  two 
or  more  persons,  has  been  received  by  one  of  them  for  him- 
self and  his  associates,  or  by  a  third  person  for  such  wrong 
doers,  an  action  will  lie  for  such  money  in  behalf  of  the 
party  to  whom  it  is  coming,  either  in  whole  or  in  part.  The 
principle  seems  to  be  that  such  right  of  action  will  arise  when 


320  NEW  JERSEY  SUPREME  COURT. 


Gregory  ads.  Wilson. 


the  circumstances  are  such,  that  the  fund  in  question  can  be 
regarded  as  money  received  for  the  benefit  of  the  party 
bringing  the  suit. 

Now,  it  appears  to  me  evident  that  this  is  extending  the 
rule  to  the  very  verge  of  impolicy.  When  the  avails  of  a 
criminal  transaction  are  passed  over  by  the  court  from  the 
hands  of  a  depositary  of  them,  as  in  the  case  of  Farmer  v. 
Russell,  already  cited,  it  is  difficult  to  shake  off  an  uncom- 
fortable impression  that  the  law  has  given  the  last  touch  to 
the  vicious  transaction.  Nor  is  the  suggestion  made  in  some 
of  the  opinions  very  re-assuring  or  satisfactory,  that  in  these 
cases  the  transaction  alleged  to  be  illegal  is  completed  and 
closed,  and  is  not  in  any  manner  to  be  affected  by  what  the 
court  is  asked  to  do  between  the  parties,  because  it  is  im- 
possible to  overlook  the  circumstance,  that  if  the  law  lends 
its  aid  to  the  transmission  of  the  gains  of  the  misdeed,  the 
doing  of  the  offence  is  facilitated  in  the  future.  Until  the 
money,  which  is  the  wages  of  the  ill-doing,  has  come  into 
the  hands  of  the  several  delinquents,  the  illegal  transaction, 
so  far  as  they  are  concerned,  is  not  closed,  and  unless  the 
matter  has  been  entirely  concluded  by  such  adjudications  that 
it  would  be -but  captiousness  to  dissent  from  them,  it  might 
well  be  worth  consideration,  whether  it  would  not  be  more 
consistent  with  the  usual  course  of  the  law,  aad  more  pro- 
tective of  public  interest,  to  proclaim  the  outlawry  of  sucli 
affairs  from  the  first  step  to  the  last.  If  A  and  B  make  sale  of 
forged  paper,  and  the  proceeds  are  paid  by  the  purchaser  to  A,. 
a  court  of  law  can  scarcely  be  said  to  perform  either  a  very 
respectable  or  a  useful  function  when  it  assists  B  in  obtaining 
his  share  of  the  profits  of  the  business.  Nor  would  it  seem 
that  it  should  give  much  concern  to  those  who  dispense  pub- 
lic justice  if  one  of  two  such  delinquents  should  be  success- 
ful in  fraudulently  withholding  from  his  companion  a  share 
of  the  wages  of  the  iniquity.  Under  such  conditions  the 
assistance  of  the  law  might,  it  would  seem,  be  rightfully  re- 
fused, not  for  the  sake  of  the  party  who  thus  cheatetl  his 
associate  in  guilt,  but  in  order  to  render  such  affairs  as  pre- 


NOVEMBER  TERM,  1873.  32? 


Gregory  ads.  Wilson. 


carious  and  difficult  as  possible  to  those  who  might  be  inclined 
to  enter  upon  them. 

But  it  does  not  seem  important  to  follow  this  line  of 
inquiry  to  a  conclusion,  inasmuch  as  such  course  is  not  essen- 
tial to  an  adjudication  of  the  question  now  before  this  court. 
The  rule  is  certainly  not  to  be  carried  beyond  its  scope,  as 
defined  in  the  decisions  referred  to,  and  that  rule,  compre- 
hensive as  it  is,  will  not  embrace  the  facts  of  the  present  case. 
The  distinction  is,  that  in  this  instance  no  money  has  been 
paid  over,  either  to  a  partner  of  the  plaintiff,  or  to  a  third 
party  for  him.  Under  the  circumstances  now  presented,  it 
is  impossible  to  say  that  the  defendant  has  moneys  in  his 
hands,  which  were  paid  to  him,  either  in  whole  or  in  part  for 
the  plaintiff.  These  parties  were  not  partners,  for  if  they 
were,  this  suit  would  not  lie,  but  the  remedy  would  be  in  a 
court  of  equity.  The  defendant  solely  earned  this  money, 
by  obtaining  the  loan  in  question,  and  the  commissions  were 
paid  to  him  in  his  own  individual  right.  The  money  he 
thus  received  was  his  own.  The  effect  of  his  contract  with 
the  plaintiff  was  to  make  him  indebted  to  him  in  the  amount 
of  one-half  of  the  money  thus  earned  by  him.  He  is  thus 
a  debtor  to  the  plaintiff,  but  he  is  such  exclusively  by 
force  of  his  agreement  with  him.  Now,  the  difficulty  in  the 
way  of  a  recovery  in  this  action  is,  that  this  agreement  is 
illegal  and  void.  The  plaintiff  knew  that  more  than  the  legal 
Tate  would  be  charged  by  the  defendant  to  the  customer 
whom  he  produced,  and  the  contract,  therefore,  was,  that 
the  defendant  should  charge  the  illegal  rate,  and  would  pay 
to  the  plaintiff  one-half  of  these  forbidden  gains.  The  con- 
sequence is,  the  plaintiff  relies  on  this  contract,  and  is  asking 
for  its  enforcement.  No  case  has  gone  to  such  a  length,  but, 
to  the  contrary,  the  courts  have  distinctly  refused  so  to  do. 
In  point  of  principle,  the  case  of  Van  Doren  v.  Slaats,  de- 
cided in  this  court,  and  reported  in  Pennington,  p.  887,  is 
exactly  applicable.  The  defendant  was  the  holder  of  a  lot- 
tery ticket,  and  agreed,  for  a  sufficient  consideration,  to  give 
the  plaintiff  a  definite  interest  in  it.     To  deal  in  such  inter- 


^22  NEW  JERSEY  SUPREME  COURT. 

Gregory  ads.  "Wilson. 

est,  was  prohibited  by  a  law  of  this  state.  A  prize  was  drawn ^ 
and  a  suit  was  to  compel  the  defendant  to  pay  to  the  plain- 
tiff his  stipulated  share  in  it.  The  argument  was  pressed,  as 
it  has  been  on  this  occasion,  that  the  sum  sued  for  was  money 
received  by  the  one  party  for  the  other,  and  that,  therefore, 
the  implied  agreement,  which  formed  the  ground  of  the 
action,  was  removed  from  tlie  original  illegal  transaction. 
But  this  argument  did  not  prevail.  The  court  saying,  "  the 
learned  counsel  for  the  plaintiff  has  very  ingeniously  endeav- 
ored to  bring  his  client's  case  within  the  principle  of  those 
cases,  by  contending  that  the  defendant  received  the  money 
as  agent  for  the  plaintiff.  But  I  think  that  this  is  not  the 
correct  interpretation  of  the  transaction.  The  plaintiff  was 
not  known  to  the  lottery  company;  he  was  no  member  of  it. 
The  agent  of  that  company  would  not  have  been  justifiable 
in  paying  any  part  of  the  money  to  him.  If  there  was  any 
agreement  at  all,  it  was  this,  that  the  plaintiff  paid  to  the 
defendant  $3.50,  on  an  agreement  between  them  that  the 
defendant  should  pay  to  him  one-third  of  the  money  that  he 
should  receive  on  that  adventure;  and  this  action  is  brought 
to  enforce  the  fulfilment  of  that  agreement.  This  agreement 
was  in  itself  illegal,  made  in  contravention  of  a  statute  of 
the  state,  and,  in  my  opinion,  the  court  cannot,  with  legal 
propriety,  sustain  the  action."  It  is  obvious  that  this  pre- 
cedent is  so  apt  to  the  present  purpose,  that  it  would  be 
necessary  to  disown  its  authority  in  order  to  clear  the  ground 
for  a  decision  in  favor  of  the  plaintiff.  I  regard  this  adjudi- 
cation as  founded  in  a  clear  exposition,  and  accurate  applica- 
tion of  the  correct  rule  of  the  law.  This  authority  is  in 
entire  accord  with  the  case  of  Belden  v.  Pitken,  2  Caines'  JR. 
147.  The  defendant  was  possessed  of  a  title  to  real » estate 
belonging  to  a  class,  the  sale  of  which  was  prohibited  by 
law.  The  plaintiff  procured  a  purchaser,  under  an  agree- 
ment that  he  was  to  have  a  certain  share  of  the  proceeds,  and 
the  money  was  paid  to  the  defendant,  and  the  suit  was 
brought  to  enforce  the  plaintiff's  right  to  a  share  of  this  sum. 
But  the  court   said:  ''In  the   present   case,  the   object  and 


JNOViiMBER  TERM,  1873.  323 

Cowenhoven  v.  Howell. 

consequence  of  the  agreement  was  the  sale  of  the  pretended 
title.  This  bping  illegal,  the  promise  to  divide  the  spoil  was 
of  course  illegal,  and  not  to  be  enforced.  All  contracts  that 
have  a  fraudulent  object  in  view,  are  void  both  at  law  and  in 
equity." 

Other  cases  having  the  same  bearing  might  be  cited,  but  in 
these  days,  when  legal  knowledge  is  so  dearly  acquired,  and 
legal  learning  is  so  cheaply  displayed,  a  voluminous  citation 
of  authorities  is  apt  to  look  like  a  petit  larceny  on  the 
digests. 

The  defendant  is  entitled  to  judgment,  and  the  court 
should  be  so  instructed. 

Cited  in  Todd  v.  Baffertifs  Admr^,  3  Stew.  Eq.  254. 


CHARLES  T.  COWENHOVEN  v.  MARTIN  A.  HOWELL. 

1.  A  promise  to  pay  a  subsisting  debt  in  order  to  be  unaffected  by  the 
statute  o£  frauds,  &c.,  must  be  founded  on  a  consideration  beneficial  to 
the  promisor. 

2.  The  defendant  promised  to  pay  the  plaintiff  if  he  would  send  certain 
depositions  which  he  had  taken,  and  upon  which  he  claimed  to  have 
a  lien,  to  his,  defendant's,  son,  who  was  solely  interested  in  them,  that 
he,  defendant,  would  pay  the  expenses  and  fees  for  taking  them ;  the 
papers  having  been  sent  in  reliance  on  this  promise — held,  that  it 
could  not  be  enforced,  as  it  was  purely  a  promse  to  pay  the  debt  of 
another. 

Rule  to  show  cause. 

The  plaintiff  acting  as  a  United  States  commissioner,  took 
certain  depositions  in  a  suit  pending  in  the  United  States 
Circuit  Court  for  t4ie  northern  district  of  Illinois,  in  which 
Martin  A.  Howell,  Jr.,  a  son  of  the  defendant  in  the  present 
suit,  was  a  party.  After  this  evidence  was  taken  the  plaintiff 
refused  to  deliver  it  up  unless  his  fees  were  paid.  It  was  not 
shown  that  the  defendant  had  any  interest  in  the  suit,  to 
which  these  depositions  pertained.     The  j)romise  on  which  the 


324  NEW  JERSEY  SUPREME  COURT. 

Cowenhoven  v.  Howell. 

suit  is  founded,  is  stated  that  in  the  testimony  of  the  plain- 
tiff himself — "Mr.  Howell  (the  defendant)  then  stated  that 
he  had  received  a  telegram  or  letter  from  his  son,  stating  that 
he  must  have  the  testimony.  I  then  repeated  to  him  what  I 
had  said  at  my  office  in  reference  to  taking  the  fees.  I  stated 
to  him  ray  conduct  in  the  whole  matter,  and  then  said  to  Mr. 
Hovvell  that  I  declined  to  surrender  that  testimony  until  I 
was  paid  for  it.  Mr.  Howell  then  said  that  he  would  be 
responsible  for  my  fees  for  that  testimony,  if  I  would  send  it 
to  Chicago  to  the  clerk  of  the  District  Court.  Mr.  Howell 
then  oifered  to  give  me  a  written  obligation  assuming  the 
responsibility.  I  then  said  to  Mr.  Howell  that  I  considered 
his  word  as  good  as  any  written  obligation  which  he  could 
give  me." 

Relying  on  this  promise,  the  plaintiff  forwarded  to  the  son 
of  the  defendant,  in  Illinois,  the  depositions. 

This  suit  is  brought  to  recover  his  fees  for  taking  them. 

At  the  circuit,  the  plaintiff  was  nonsuited  by  Mr.  Justice 
Scudder. 

Argued  at  June  Term,  1 873,  before  Beasley,  Chief  Jus- 
tice, and  Justices  Depue  and  Van  Syckel. 

For  the  plaintiff,  A.  V.  Schenck. 

For  the  defendant,  I.  W.  Scudder 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  One  of  the  important  objects 
of  the  statute  of  frauds  is  to  prevent  ony  one  from  becoming 
bound  for  the  debt  of  another,  unless  a  written  certificate, 
duly  signed,  of  such  obligation,  can  be  produced.  The  wis- 
dom and  practical  value  of  this  enactment  have  never  been 
denied,  hiit  the  difficulty  has  been  to  discriminate  between 
such  undertakings  as  are  primary  in  their  nature,  and  such  as 
are  secondary,  that  is  in  aid  of  the  liability  of  some  other 
party.     Many  of  the  judicial  decisions  are  in  conflict  on  this 


NOVEMBER  TERM,  1873.  325 

Cowenhoven  v.  Howell. 

subject,  but  I  think  it  can,  at  present,  be  said  that  the  rule, 
applicable  to  this  class  of  cases,  has  been  placed  at  length  on 
a  stable  foundation.  That  rule  is,  that  in  case  of  a  promise 
to  become  liable  for  an  existing  debt  or  obligation,  there  must, 
in  order  to  sustain  such  promise,  and  render  it  unobjectionable 
in  view  of  the  statute,  be  a  substantial  consideration  moving 
to  such  promisor.  In  such  transactions,  the  simple  fact  that 
a  good  consideration  for  the  assumption  exists,  is  not  sufficient ; 
but  superadded  to  this,  such  consideration  must  be  apparently 
beneficial  to  the  party  undertaking  to  pay  the  debt  and  assume 
the  obligation.  By  force  of  the  statute,  an  unwritten  promise 
to  pay  tlie  debt  of  another,  is  inefficacious ;  the  new  assump- 
tion, consequently,  if  it  is  to  have  any  legal  obligation,  must 
not  have  such  an  object  in  view  as  its  primary  purpose,  but 
the  primary  purpose  must  be  to  promote  the  interest  of  him 
who  takes  the  burthen  upon  himself.  Hence  it  is,  that  in 
such  transactions,  a  mere  detriment  to  the  promisee,  the  origi- 
nal obligation  remaining  unextinguished,  will  not  support  a 
promise  of  this  character.  Such  a  consideration  would  be  good 
at  common  law,  independently  of  the  effect  of  the  statute, 
because  before  the  passage  of  the  act,  any  legal  agreement  to 
pay  the  debt  of  another  was  valid,  but  now  such  an  agreement 
must  be  in  writing.  The  consequence  is,  that  agreements 
which  will  have  the  effect  to  discharge  the  debt  of  another, 
must  be  founded  in  a  motive  of  interest,  selfish  in  the  promisor. 
The  distinction  is  between  a  promise,  the  object  of  which  is  to 
promote  the  interest  of  another,  and  one  in  which  the  object 
is  to  promote  the  interest  of  the  party  making  the  promise. 
The  former  is  within  the  operation  of  the  statute.  The  latter 
is  unaffected  by  it. 

The  principle  is  clearly  exemplified  by  a  long  series  of 
decisions.  Among  these  may  be  mentioned  the  case  of  Fish 
v.  Hutchinson,  2  Wil.  94.  The  plaintiff  had  sued  a  third 
person  for  a  debt,  and  the  defendant,  in  consideration  of  the 
•staying  of  such  action,  promised  to  pay  the  money  owing. 
Here  was  obviously  a  good  consideration  for  the  promise,  as 
■the  suspension  of  the  action  was  a  loss  to  the  promisee ;  nev- 


326  NEW  JERSEY  SUPREME  COURT. 

Cowenhoven  v.  Howell. 

ertheless  as  it  was  a  naked  undertaking  to  pay  the  debt  of 
another  person,  the  judgment  was  that  it  could  not  be  en- 
forced by  reason  of  the  statute.  To  the  same  effect  is  the  case 
of  Nelson  V.  Boynton,  3  Meic.  396,  the  decision  resting  oa= 
identical  grounds.  The  basis  of  that  suit  was  a  promise  to- 
pay  the  note  of  a  third  person  which  was  in  suit,  and  which 
was  secured  by  an  attachment  on  his  property,  in  considera- 
tion of  the  holder  of  the  note  discontinuing  his  suit.  In  this, 
as  in  the  former  case,  the  discontinuance  of  the  action  consti- 
tuted a  sufficient  consideration,  but  for  the  reason  before 
assigned,  it  being  an  assumption  of  another's  debt,  and  nothing 
more,  the  suit  fell  to  the  ground. 

Many  other  decisions  of  the  same  complexion  might  be 
vouched  in  support  of  the  principle  thus  illustrated,  but  I 
shall  not  cite  them,  as  they  can  be  very  readily  found  by  a 
reference  to  any  of  the  ordinary  text  books.  The  two  examples 
■which  have  been  presented,  show  clearly  that  a  consideration 
of  mere  detriment  to  the  promisee,  when  the  undertaking  is 
to  pay  the  debt  of  another,  and  the  original  obligation  to  pay 
such  debt  continues,  will  not  take  such  promise  out  of  the 
reach  of  the  statute. 

But  a  citation  or  two  from  the  obverse  line  of  cases,  where 
it  has  been  held  the  statute  was  inapplicable,  will  serve  fur- 
tJier  to  elucidate  the  rule  already  propounded.  In  this  class, 
Williavis  V.  Leper,  3  Burr.  1886,  is  a  leading  case.  The 
plaintitF,  as  landlord,  was  about  to  distrain  for  rent  certain 
goods  in  the  possession  of  the  defendant,  who  was  a  broker 
employed  to  sell  the  goods;  and  the  latter  promised  the  land- 
lord to  pay  the  rent  if  he  would  abstain  from  proceeding.  Thir 
undertaking  was  held  to  be  valid  on  the  ground  that  the  bro- 
ker, being  in  possession  and  having  a  personal  interest  to  pro- 
tect, was  moved  to  enter  into  the  agreement  by  these  considera- 
tions. The  theory  put  in  force  was  that  the  promise  pro- 
ceeding from  such  a  motive,  personal  to  the  promisor,  was 
original  and  not  collateral.  The  same  reasoning  led  to  a 
similar  result  in  Johnson  v.  Gilbert,  4  Hill  178.  The  facts 
were,  the  plaintiff  had  paid  a  debt  for  the  defendant,  and  the 
latter  transferred  to  him  a  note  of  a  third  party  with  a  guaranty 


NOVEMBER  TERM,  1873.  327 

Cowenhoven  v.  Howell. 

of  payment.  This  guaranty  was  void,  if  the  case  was  within  the 
statute,  but  the  court  thought  that  it  was  not,  as  the  defendant 
did  not  stand  as  a  naked  surety  for  a  third  person.  The  cases  de- 
cided in  this  court  of  Clarh  v.  Hall,  6  Halst.  78,  and  Kutzmeyer 
V,  Ennis,  3  Dutcher  371,  rest  upon  this  same  foundation. 

These  authorities  sufficiently  explain  the  application  of  the 
rule  above  defined,  that  the  promise  which  is  incidentally  to 
discharge  the  debt  of  a  third  party  in  order  to  be  without 
the  statutory  provision,  must  not  only  have  a  new  considera- 
tion to  support  it,  but  such  consideration  must  so  move  to  the 
promisor  as  to  make  the  transaction  a  matter  of  personal 
concern  to  himself.  In  this  way  only  can  it  be  made  an 
original  and  substantive  assumption. 

Under  the  operation  of  this  rule  the  correctness  of  the 
ruling  in  this  case  at  the  circuit  becomes  clearly  indisputable. 
The  defendant  had  no  interest  whatever  in  the  debt  which  he 
agreed  to  pay.  The  entire  consideration  of  the  promise  was 
the  relinquishing  of  the  lien  by  the  defendant,  and  it  has  been 
shown  that  such  a  detriment,  although  a  good  consideration^ 
to  support  an  undertaking,  is  not  such  a  one  as  will  remove 
the  transaction  to  a  position  not  reached  by  the  statute.  The 
non-suit  must  stand. 

It  is  proper  to  remark  that  the  rule  above  adopted  is  not 
applicable  to  that  class  of  affairs  where  the  effect  of  the  new 
promise  is  to  extinguish  the  liability  of  the  original  party  be- 
fore the  obligation  of  the  new  promise  attaches.  As  in  case 
of  a  promise  to  pay  the  debt  if  the  promisee  will  discharge 
the  primary  debtor  from  a  capias  ad  respondendum.  In  such 
event  the  discharge  from  the  writ  by  operation  of  law,  de- 
stroys the  debt,  so  that  there  is  nothing  to  which  the  new  as- 
sumption can  stand  as  collateral.  In  cases  of  this  class  it 
has  been  repeatedly  decided  that  the  statute  did  not  apply. 
Goodman  v.  Chase,  1  B  &  Aid.  297 ;  Fitzgerald  v.  Dressier, 
7  C.  B.  {N.  S.)  374;  Kelsey  v.  Hibbs,  13  Ohio  {N.  S.)  340; 
Butcher  v.  Steicart,  11  31.  &  \V.  857;  Meridan  Britannia  Co, 
v.  Zingsen,  48  N.  Y.  247. 

Cited  in  Wills  v.  Shinn,  13  Vr.  138 ;  Blackford  v.  Plainfield  Gas  Light 
Co.,  14  Vr.  -133. 


328  NEW  JERSEY  SUPREME  COURT. 


Hinds  V.  Henrv, 


BENJAMIN  C.  HINDS  v.  EUGENE  T.  HENRY. 

1.  To  entitle  a  broker  to  commissions  for  services  in  negotiating  a  sale, 
the  services  must  be  rendered  under  an  employment  by  his  principal. 
Services  rendered  as  a  mere  volunteer,  without  any  employment,  ex- 
press or  implied,  will  give  no  right  to  commissions. 

2.  The  general  rule  is,  that  the  right  of  a  broker  to  commissions  is  com- 
plete when  he  has  procured  a  purchaser  able  and  willing  to  conclude 
a  bargain  on  the  terms  on  which  the  broker  was  authorized  to  sell. 

3.  This  rule  rests  on  the  general  usages  of  the  business,  and  is  liable  to 
be  modified  or  superseded  by  a  special  usage  in  relation  to  the  par- 
ticular transaction,  or  by  special  agreement  between  the  parties. 

4.  A  broker  may,  by  special  agreement  with  his  principal,  so  contract  as 
to  make  his  compensation  dependent  on  a  contingency  which  his 
efforts  cannot  control,  even  though  it  relates  to  the  acts  of  his  prin- 
cipal. 

5.  In  an  action  for  the  payment  of  money  on  a  contingency,  the  pleader 
must  aver,  and  it  must  be  proved  that  the  contingency  has  happened, 
or  that  performance  was  prevented  by  the  other  party  by  some  wilful 
or  fraudulent  act,  in  violation  of  his  own  undertaking,  express  or 
implied. 


On  rule  to  show  cause. 

Eugene  T.  Henry,  the  defendant,  was  the  owner  of  a  tract 
-of  land  in  the  State  of  Pennsylvania,  containing  about  thir- 
teen hundred  acres.  The  title  for  a  portion  of  the  premises, 
called  the  Paschal  tract,  containing  about  one  hundred  and 
seventy  acres,  was  in  the  defendant's  father,  of  which  the  de- 
fendant, however,  had  the  control.  On  the  6th  of  December, 
1866,  the  defendant  entered  into  an  agreement,  under  seal, 
with  the  plaintiif,  to  employ  him  as  his  agent  to  sell  the 
property  on  certain  terms  and  conditions,  which  were  speci- 
fied, and  agreed  that  the  plaintiff  should  have,  for  his  com- 
missions, all  the  property  should  bring  over  $12,000.  In 
this  agreement,  it  was  made  a  condition  that  the  sale  should 
be  effected  before  January  15th,  1867.  By  a  supplemental 
agreement,  in  writing,  made  on  the  9th  of  January,  1867, 
•the  time  mentioned  for  effecting  a  sale  was  extended  for  sixty 


NOVEMBER  TERM,  1873.  329^ 

Hinds  V.  Henry. 

days.  On  the  18th  of  February,  1867,  Henry,  by  a  power 
of  attorney,  under  seal,  constituted  the  plaintiff  his  attorney,, 
with  power  to  make  agreements  for  the  sale  of  the  property, 
in  accordance  with  the  terms  contained  in  the  original  agree- 
ment. 

On  the  28th  of  March,  1867,  the  plaintiff,  under  the  above 
mentioned  power  of  attorney,  made  an  agreement  in  the 
name  of  his  principal  with  Laubach  &  Riegel,  to  sell  and 
convey  to  them  the  property  in  fee  simple,  clear  of  all  en- 
cumbrances, for  the  sum  of  $15,000.  On  the  29th  of  March, 
1867,  the  plaintiff  and  defendant  executed  another  instru- 
ment, under  seal,  in  which,  after  reciting  the  agreement  of 
December  6th,  1866,  and  the  agreement  for  sale  made  with 
Laubach  &  Reigel,  it  was  stipulated  as  follows :  "  And  now 
be  it  known  that,  by  the  said  quoted  agreement  between  the 
said  B.  C.  Hinds  and  E.  T.  Henry,  it  was  fully  understood 
that  any  amount  over  and  above  the  sum  of  $12,000  that  the 
said  B.  C.  Hinds  might  succeed  in  obtaining  for  the  said 
property,  should  accrue  to  the  use  and  benefit  of  the  said  B. 
C.  Hinds,  and  he,  the  said  B.  C.  Hinds,  having  succeeded  in 
selling  the  said  property  at  an  advance  of  $3000,  over  and 
above  the  limit  placed  thereon,  the  said  Eugene  T.  Henry 
hereby  acknowledges  himself  indebted  to  the  said  B.  C.  Hinds 
in  the  said  sum  of  $3000,  payable  to  the  said  B.  C.  Hinds,  th& 
first  half  thereof  (say  $1500,)  at  the  time  that  the  purchasers 
of  the  property  hereinbefore  mentioned  shall  pay  over  the  first 
half  of  the  purchase  money,  and  the  balance  at  the  expiration- 
of  one  year  from  the  date  of  the  deed  for  said  property,  with- 
out interest." 

At  the  day  named  for  the  delivery  of  the  deed  and  the 
consummation  of  the  agreement  to  purchase,  the  parties  met. 
The  purchasers  were  present,  able  and  willing  to  conclude 
the  purchase,  by  complying  with  the  terms  of  sale.  The 
Paschal  tract  had  been  previously  sold  for  taxes,  and  a  tax 
title  was  at  that  time  outstanding,  in  a  third  person,  which 
was   invalid,  but  was    then    in    litigation.     The    purchasers- 


330         NEW  JERSEY  SUPREME  COURT. 

Hinds  V.  Henry. 

being  made  aware  of  the  cloud  on  the  title,  refused  to  proceed 
Avith  the  purchase. 

Argued  at  June  Term,  1873,  before  the  Chief  Justice, 
and  Justices  Dalrimple,  Depue  and  Van  Syckel. 

For  the  plaintiff,  J.  Vanatta. 

For  the  defendant,  /.  G.  Shipman. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  Upon  the  facts  set  out  in  the  foregoing  state- 
ment of  the  case,  the  plaintiff  brought  his  action  against  the 
defendant  to  recover  compensation  for  his  services  in  negoti- 
ating the  sale.  At  the  circuit,  the  cause  was  tried  by  the 
<)ourt — a  jury  being  waived — and  the  finding  of  the  court  was 
in  favor  of  the  defendant.  The  rule  to  show  cause  presents 
the  question  of  the  propriety  of  this  finding,  under  the  testi- 
mony produced  before  the  court. 

The  declaration  contains  the  common  counts  for  work  and 
labor,  and  services  performed,  and  also  a  special  count  on  the 
obligation  of  March  2Sth,  1867. 

The  plaintiff  is  not  entitled  to  recover  under  the  common 
•counts.  To  entitle  a  broker  to  commissions  for  his  services 
in  negotiating  a  sale,  the  services  must  be  rendered  under 
an  employment  and  retainer  by  his  prineipal.  Services  ren- 
dered as  a  mere  volunteer,  without  any  employment,  express 
or  implied,  will  give  no  title  to  commissions.  Edwards  on 
Factors  and  Brokers  144 ;  Cook  v.  Welch,  9  Allen  350.  If 
the  employment  be  by  special  agreement,  the  rights  and  lia- 
bilities of  the  parties  will  be  determined  by  the  terms  of  the 
agreement  exclusively.  Russell  on  Factors  155;  Bower  v. 
Jones,  8  Bing.  65 ;  Warde  v.  Stuart,  1  C.  B.  {N.  S.)  88 ; 
Jacobs  v.  Kolff,  2  Hilton  133. 

The  employment  of  the  plaintiff  to  negotiate  a  sale  was 
by  the  first  agreement  between  the  parties,  which  was  made 
on  the  6th  of  December,  1866.     In  express  terms,  the  power 


NOVEMBER  TERM,  1873.  331 

Hinds  V.  Henry. 

to  sell  was  limited  to  the  15th   of  January,  1867.     The  sub- 
sequent extension  enlart^ed  the  time  until  the  15th  of  March. 
On   this  latter  day,   the  authority  of  the  plaintiff  and   his 
employment  terminated  by  the   limitation  in  the  agreement 
of  the  parties.     The  contract  for  the  sale  was  made  with  Lau- 
bach  and  Reigel,  on  the  28th  of  March.     The  case  does  not 
disclose  any  agreement,  express  or  implied,  between  the  par- 
ties, for  continuing  the  plaintiff's  agency  after  the  former 
agreement  had  expired,     Consequently,  the  authority  of  the 
I)laint.iff  was  at  an  end  when  the  contract  with  the  purchasers 
was   made.     For  services  (if  any)   which   the   plaintiff  had 
rendered  towards   the  contract  of  sale,   whilst  the  original 
employment  subsisted,  he  could  not  hav^e  recovered  for  the 
reason  that,  under  the  agreement  then  in  force,  a  sale  on  a 
day  not  later  than  the  15th  of  March,  was  a  condition  pre- 
cedent to  the  obligation  of  that  agreement.     After  the  lapse 
of  that  time,   the  employment  of  the   plaintiff  ceased,  and 
thereafter  he  acted  as  a  volunteer,  with  no  power  to  represent 
the  defendant,  or  to  conclude  a  contract  in  his  name,  except 
such  as  was  derived  from  the  subsequent  ratification  of  his 
acts  by  the  defendant.     The  plaintiff  testifies  that  the  con- 
tract for  sale  was  executed  by  himself,  as  the  agent  of  the  de- 
fendant, and  by  Laubach  and  Reigel,  in  duplicate,  on  the  day 
it  bears  date,  and  that  he  delivered  one  copy  to  the  defendant 
on  the  next  day,  when  the  obligation  sued  on  was  executed 
and  given  to  him.     The  acceptance  by  the  defendant  of  the 
contract   to  sell,  made  in   his   name   by  the   plaintiff,  as   his 
agent,  and  the  recitals  in  the  obligation  were  an  adoption  of 
the   contract,    which   made   it   binding  on   the  defendant,  as 
between  him  and  the  purchasers,  but  did  not  operate  to  con- 
fer   upon    the    plaintiff    any   right    other    than    such    as    is 
expressed   in   the  obligation   that   was  then  executed.     The 
parties  in  that  instrument  put  in  writing  the  understanding 
and  agreement  as  between  tiiemselves.     If  any  other  engage- 
ments   had    previously    existed,   they   were    merged    in   this 
agreement.     It  is  manifest  that,  inckpendently  of  the  obliga- 
tion of  March  29th,  1867,  the  plaintiff  can  have  no  right  of 


332  NEW  JERSEY  SUPREME  COURT. 

Hinds  V.  Henry. 

action  against  the  defendant,  under  either  the  common  counts^ 
or  any  other  form  of  pleading. 

The  special  count  is  founded  on  this  obligation.  Can  the 
plaintiff  under  the  evidence  in  the  chuse  recover  upon  it? 
The  general  rule  is  that  the  right  of  the  broker  to  commis- 
sions is  complete,  when  he  has  procured  a  purchaser  able  and 
willing  to  conclude  a  bargain  on  the  terras  on  which  the 
broker  was  authorized  to  sell.  When  such  a  purchaser  is 
produced,  the  principal  cannot  defeat  the  agent's  right  to 
compensation  by  a  refusal,  without  sufficient  reason  to  fulfill 
the  agreement  which  the  agent  had  power  to  make.  Prick- 
ett  V.  Badger,  1  C.  B.  {N.  S.)  296  ;  Lockwood  v.  Levick,  8  lb 
603 ;  Kock  v.  Emma'ling,  22  How.  69 ;  Cook  v.  Fiske,  V2 
Gray  491  ;  Glentworth  v.  Luther,  21  Barb.  145.  This  rule 
rests  upon  the  general  usage  of  the  business,  and  is  liable  to 
be  modified  or  superseded  by  a  special  usage  in  relation  to 
the  particular  transaction,  in  connection  with  which  the  broker 
was  employed,  or  by  special  agreement  between  the  parties. 
Thus,  in  London,  by  the  established  usage,  a  ship  broker  ne- 
gotiating the  hiring  of  vessels,  is  not  entitled  to  commissions 
until  the  chartering  is  completed,  and  cannot  recover  com- 
pensation unless  the  charter  party  is  signed,  even  though  the 
negotiation  was  rendered  fruitless  by  the  fault  of  the  em- 
ployer. Bead  v.  Barm,  10  B.  &  C.  438 ;  Broad  v.  ThomaSy 
7  Bing.  99 ;  Dalton  v.  Irvin,  4:  C.  &  P.  289. 

The  broker  may  also,  by  special  agreement  with  his  prin- 
cipal, so  contract  as  to  make  his  compensation  dependent  on 
a  contingency  which  his  efforts  cannot  control,  even  though 
it  relate  to  the  acts  of  his  principal.  A  contract  of  that ' 
character  is  binding,  and  no  action  can  be  maintained  until 
the  contingency  has  arisen.  Bull  v.  Price,  7  Bing.  237 ;  Al- 
der V.  Boyle,  4  C.  B.  635;  Moffat  v.  Laurie,  15  C.  B.  583  ^ 
Tombs  \.  Alexander,  \0\  Mass.  255;  Walker  v.  Tirrell,  lb. 
257.  In  Bull  v.  Price  the  retainer  was  for  the  negotiation  of 
the  sale  of  a  reversionary  interest  for  a  compensation  of  two 
per  cent,  on  the  sum  obtained.  The  property  was  sold  by 
the  broker,  and  the  proceeds  paid  into  court,  from  which  they 


NOVEMBER  TERM,  1873.  333 

Hinds  V.  Henry. 

could  only  be  obtained  by  an  application,  and  were  subject  to 
a  deduction  for  costs,  and  the  value  of  an  annuity  charged  on 
the  estate.  It  was  held  that  an  action  before  the  money  was 
got  out  of  court,  was  commenced  too  soon.  In  Alden  u, 
Boyle,  upon  a  negotiation  between  A  and  B  for  an  exchange 
of  advowsons,  the  defendant  agreed  to  pay  the  broker  .£100, 
"one-third  down  and  the  remaining  two-thirds  when  the 
abstract  of  conveyance  is  drawn  out."  The  defendant  deliv- 
ered the  abstract  of  his  title,  but  no  abstract  was  delivered  by 
the  other  party,  and  nothing  further  being  done  the  negotia- 
tion dropped.  In  an  action  by  the  broker  for  the  last  pay- 
ment of  two-thirds  of  his  commissions,  it  was  decided  that 
the  action  could  not  be  maintained — the  event,  on  the  happen- 
ing of  which  the  plaintiflF's  right  to  that  portion  of  the  com- 
pensation agreed  on,  not  having  occurred. 

By  the  contract  in  this  case,  the  defendant  obligated  him- 
self to  pay  the  commissions  agreed  on — one  half  at  the  time 
the  purchasers  of  the  property  should  pay  the  first  half  of 
the  purchase  money,  and  the  balance  at  the  expiration  of  one 
year  from  the  date  of  the  deed,  without  interest.  In  an 
action  on  an  obligation  of  this  kind,  the  pleader  must  aver, 
and  it  must  be  proved  at  the  trial,  that  the  contingency  on 
which  the  debt  is  payable  has  happened,  or  that  it  wa&  de- 
feated through  some  fault  of  the  obligor.  Holdipp  v. 
Otway,2  Saunders  106;  Walker  v.  Tirrell,  101  Mass.  257; 
Moffatt  V.  Laurie,  15  C.  B.  583.  The  contingency  on  which 
the  plaintiff's  compensation  was  dependent  has  never  arisen. 
To  excuse  the  absence  of  proof  on  this  subject,  the  plaintiff 
relies  on  a  class  of  cases  which  hold  that  the  obligee  i* 
relieved  from  the  necessity  of  proving  performance  of  the  con- 
dition, where  performance  has  been  prevented  by  the  act  of 
the  obligor.  The  cases  on  this  subject  are  quite  numerous. 
Malins  v.  Freeman,  4  Bing.  {N.  S.)  395 ;  Doe  v.  Bancks,  4  B, 
&  Aid.  401 ;  Blanche  v.  Colburn,  8  Bing.  14 ;  Hall  v. 
Conder,  2  C.  B.  {N.  S.)  22;  Inchbald  v.  The  Western  Co., 
17  lb.  733;  Horler  v.  Carpenter,  2  lb.  56;  Young  v. 
Hunter,   2  Seld.   204;   Hurlstone  on  Bonds  49.     But  they 

Vol.  VII.  21 


334  NEW  JERSEY  SUPREME  COURT. 

Hinds  V.  Henry. 

•will  be  found,  without  exce{)tion,  to  be  cases  in  which  the 
obligee  has  prevented  the  performance  of  the  condition  by 
some  wilful  or  fraudulent  act,  in  Violation  of  his  own  under- 
taking, express  or  implied. 

In  the  present  case,  tFe  cloud  on  the  defendant's  title, 
^vhich  ultimately  broke  off  the  contract  to  sell,  was  made 
known  to  the  plaintiff  when  the  power  of  attornery  was  given. 
The  time  when  the  title  might  be  perfected  was  the  subject  of 
a  letter,  written  by  the  defendant's  father  to  the  plaintiff, 
bearing  date  on  the  20th  of  February,  in  which  he  says :  "  I 
left  for  Wilkesbarre  to  ascertain  when,  to  a  certainty,  the  title 
can  be  completed,  and  I  dare  say  it  will  not  be  safe  to  say 
earlier  than  May  1st  next,  although  it  may  be  sooner."  "With 
this  knowledge  of  a  condition  of  the  title  that  might  create 
difficulty,  the  plaintiff  concluded  a  contract  for  sale,  binding 
the  defendant  to  convey,  on  the  1st  of  May,  in  fee  simple, 
clear  of  all  encumbrances.  At  the  time  of  these  transac- 
tions, it  was  expected  that  the  suit  in  which  the  validity  of 
the  tax  title  was  to  be  determined  would  be  tried  at  the  fol- 
lowing April  term.  It  was  laid  over  at  that  term  in  good 
faith,  on  account  of  the  non-return  of  a  commission,  taken 
"Out  for  the  examination  of  "an  important  witness  in  a  foreign 
•country,  and  was  not  finally  disposed  of  until  February,  1868. 
AVhen  the  obligation  sued  on  was  signed,  the  j)ending  liti- 
gation was  referred  to.  The  plaintiS  testified  that  the  de- 
fendant then  said,  that  if  there  was  any  likelihood  of  his 
iosing  the  suit  he  would  buy  the  parties  off.  At  the  time 
fixed  for  making  the  deed,  the  defendant's  counsel  exhibited 
to  the  counsel  of  the  purchasers  the  proof — by  the  production 
of  receipts  for  the  taxes — that  the  tax  title  was  worthless ; 
and  the  clear  weight  of  the  evidence  is,  that  the  defendant 
offered  to  convey,  leaving  with  the  purchasers  sufficient  of  the 
purchase  money  to  indemnify  them  for  any  loss  arising  from 
an  adverse  termination  of  the  litigation,  or  to  convey  the 
residue  of  the  lands,  omitting  the  tract  which  was  in  contro- 
versy. The  purchasers  declined  to  accept  anything  but  an 
unclouded  title,  and  the  contract  with  them  fell  through. 


NOVEMBER  TERM,  1873.  335 

Trenton  Water  Power  Co.  v.  Raff. 

The  evidence  show8  that  defendant  made  no  fraudulent  con- 
cealment of  the  defect  in  his  title,  and  that  the  plaintiff  acted 
with  full  knowledge  that  his  efforts  might  be  made  abortive 
by  the  defendant's  inability  to  convey  as  was  stipulated.  The 
sale  fell  through,  not  in  consequence  of  any  default  of  the  de- 
fendant, but  was  defeated  by  the  occurrence  of  a  contingency, 
the  possibility  of  the  happening  of  which  was  known  to  both 
parties,  and  with  respect  to  which  they  expressly  contracted. 

The  result  in  the  court  below  was  correct,  and  the  rule  to 
show  cause  should  be  discharged. 


THE  TEENTON  WATER  POWER  COMPANY  v.  WILLIAM 
RAFF,  DANIEL  RAFF  AND  BENJAMIN  F.  RAFF. 

1.  In  an  action  to  recover  damages  from  flowage  by  back  water,  a  request 
to  charge  that  a  dam  which  had  been  in  existence  for  forty  years,  was 
a  legal  structure,  was  properly  refused,  where  there  was  some  question 
whether  its  maintenance  had  been  peaceably  acquiesced  in.  The  court 
should  have  been  asked  to  leave  to  the  jury  the  question  whether  the 
dam  had  been  maintained  for  the  presci-iptive  period,  under  such 
circumstances  as  to  give  a  right  by  prescription. 

2.  Immunity  from  liability  to  actions  for  injuries  resulting  to  individu- 
als from  acts  done  under  legislative  authority,  extends  only  to  such 
injuries  as  arise  incidentally  from  acts  done  under  a  valid  act  of  the 
legislature,  by  persons  acting  with  due  skill  and  caution  within  the 
scope  of  their  authority,  in  the  execution  of  a  public  trust  for  the 
public  benefit. 

3.  An  action  will  lie  to  recover  damages  for  an  injury  to  property  in  the 
execution  of  work  under  legislative  authority,  if  the  injury  be  direct, 
or  the  work  be  done  for  the  benefit  of  an  individual  or  corporation 
with  private  capital,  and  for  private  emolument,  even  though  the 
public  be  incidentally  benefited  by  it. 

4.  An  act  of  the  legislature,  authorizing  one  to  erect  a  dam  in  a  river 
which  is  a  public  highway,  may  be  a  justification  so  far  as  public 
interests  are  concerned,  but  will  be  no  justification  for  a  private  injury, 
caused  by  the  overflow  of  lands  of  an  individual  proprietor. 


336         NEW  JERSEY  SUPREME  COURT. 

Trenton  Water  Power  Co.  v.  Eaff. 

5.  The  destruction  of  private  property,  either  total  or  partial,  or  the 
diminution  of  its  value  bv  the  act  of  the  government  directly,  and 
not  merely  incidentally  affecting  it,  which  deprives  the  owner  of  the 
ordinary  use  of  it,  is  a  taking  within  the  constitutional  provision 
which  can  only  be  exercised  under  the  right  of  eminent  domain,  on 
just  compensation  made. 

(i.  The  legislature  cannot  deprive  an  individual  of  the  advantages  of  a 
stream  of  water  in  its  natural  flow  over  his  lands,  or  create  an  ease- 
ment in  his  lands  of  the  right  to  overflow,  without  providing  compen- 
sation for  tlie  injury. 

On  error  to  Mercer  Circuit. 

Argued  at  June  Term,  1872,  before  the  Chief  Justice, 
and  Justices  Dalrimple,  Depue  and  Van  Syckel. 

For  the  plaintiflf  in  error,  E.  T.  Green. 

For  the  defendants,  F.  Kingman. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  The  plaintiffs  sue  in  an  action  of  trespass  on 
the  case  to  recover  damages  for  an  injury  to  their  mill  by  back 
water,  caused  by  a  dam  maintained  by  the  defendants.  The 
plaintiffs'  mill  is  situate  on,  and  driven  by  the  waters  of 
Jacob's  creek,  a  natural  watercourse,  emptying  into  the  Dela- 
ware river.  The  defendants'  dam  was  erected  across  the  river, 
below  the  place  at  which  the  waters  of  the  creek  are  discharged 
into  the  river,  by  reason  whereof  the  waters  of  the  river  and 
creek  were  penned  back  and  thrown  upon  the  wheel  of  the 
plaintiffs'  mill. 

The  defendants  were  incorporated  by  an  act  of  the  legisla 
ture  of  this  state,  entitled  "  An  act  to  incorporate  a  company 
to  create  a  water  power  at  the  city  of  Trenton,  and  for  other 
purposes,"  passed  on  the  16th  of  February,  1831.  Ads,  1831, 
p.  131.  Among  other  powers  granted,  the  company  were 
authorized  to  erect  a  wing  dam  in  the  Delaware  river,  be- 
tween the  mouth  of  the  Assanpink  and  the  head  of  Wells* 


NOVEMBER  TERM,  1873.  337 

Trenton  Water  Power  Co.  v.  Raff. 

Falls,  in  order  to  divert  the  waters  of  the  river  into  a  race- 
way, whereby  they  would  be  cswried  to  Trenton,  and  there 
used  as  a  water  power  for  mills  and  manufacturing  purposes, 
with  proviso  that  such  wing  dam  should  be  so  constructed  as 
not  to  impede  the  passage  of  fish,  rafts,  arks  and  boats  in  said 
river.  Shortly  after  the  incorporating  act  was  passed,  the 
company  threw  up  a  dam,  constructed  of  stone  and  timber,  at 
the  place  in  question,  which  was  continued  until  1867,  when 
the  erection  of  a  new  wooden  dam  was  begun,  which  was 
completed  to  its  present  height  and  efficiency  in  1869.  In 
J  870  the  plaintiffs  brought  an  action  against  the  defendants  to 
recover  damages  for  the  back  flowage  on  their  mill,  caused 
by  the  present  dam,  and  recovered  a  verdict  with  an  assess- 
ment of  damages  for  the  injury  to  the  3d  of  February,  1870. 
The  present  suit  is  for  damages  resulting  from  the  same  cause, 
between  tlie  3d  of  February,  1870,  and  the  20th  of  May,  in 
the  same  year.  The  plaintiffs,  at  the  trial,  relied  on  the  re- 
covery in  the  former  action  to  establish  their  right  and  fix 
the  liability  of  the  defendants.  They  recovered  a  verdict, 
and  a  judgment  which  was  removed  to  this  court  by  a  writ 
of  error,  on  exceptions  taken  at  the  trial'. 

The  exceptions  to  the  charge  of  the  court  are  founded  on 
the  refusal  to  cliarge  as  requested :  1.  That  the  old  dam  was 
a  legal  structure,  and  so  far  as  defendants  were  concerned, 
they  could  not  complain  of  it,  as  it  had  existed  for  more  than 
twenty  years  before  they  purchased  the  premises  affected  by 
it.  2.  That  the  plaintiffs  were  entitled  to  recover,  if  any- 
thing, only  for  the  excess  of  damages  occasioned  by  the  new 
•dam,  beyond  what  would  have  resulted  from  the  old  dam. 

The  refusal  to  make  this  charge  was  proper.  The  request 
-assumed  that  the  old  dam  was  a  legal  structure.  The  mere 
fact  that  this  dam  had  existed  for  forty  years,  did  not,  as  a 
question  of  law,  make  it  a  lawful  structure.  Whether  the 
defendants  had  acquired  a  prescriptive  right  to  flow  the  plain- 
tiffs' land  the  height  to  which  the  water  was  held  by  the  old 
dam  by  an  adverse  user,  continued  uninterruptedly  for  th& 
period  of  prescription,  was  a  question  open  for  controversy  in 


338  NEW  JERSF.Y  SUPREME  COURT. 


Trenton  Water  Power  Co.  v.  Raff. 


the  cause.  The  proof  was,  that  its  maintenance  had  not  been 
peaceably  acquiesced  in,  and  that  on  one  occasion  at  least^ 
within  nineteen  years  before  tlie  trial,  it  had  been  torn  out  by 
persons  who  felt  aggrieved  by  its  existence.  The  court  should 
have  been  asked  to  leave  the  question  to  the  jury,  whether 
the  old  dam  had  been  maintained  for  the  prescriptive  period, 
under  such  circumstances  as  would  give  a  right  by  prescrip- 
tion, with  the  instruction  that  if  it  iiad  been  so  maintained, 
the  plaintiffs  were  entitled  to  damages  only  for  the  injury  in 
excess  of  that  which  resulted  from  the  old  dam.  The  request 
to  charge  as  presented  by  counsel  was  properly  denied. 

The  exception  mainly  relied  on,  is  that  taken  to  the  refusal 
of  the  court  to  permit  the  defendants  to  show  that  the  present 
dam  was  a  legal  structure  by  force  of  an  act  of  the  legislature 
of  the  State  of  Pennsylvania,  passed  March  15th,  1866,  en- 
titled "An  act  to  improve  the  navigation  of  the  Delaware 
river,  for  the  running  of  lumber,"  having  been  erected  by 
commissioners  named  in  that  act.  In  connection  with  this 
offer,  the  defendants  proposed  also  to  rely  on  an  act  of  the 
legislature  of  this  state,  passed  on  the  22d  of  February,  1870. 
The  court  excluded  both  of  these  acts  from  being  evidence  in 
the  cause. 

The  act  of  the  legislature  of  the  State  of  Pennsylvania  was 
passed  before  the  former  suit  was  commenced,  and  its  efficacy  as 
a  justification  for  the  act,  which  is  the  gravamen  of  the  present 
suit,  was  then  put  in  issue,  and  decided  adversely  to  the  de- 
fendants. The  former  adjudication  of  the  insufficiency  of 
that  legislation  to  legalize  the  structure,  is  conclusive  on  the 
parties  in  the  present  suit.  It  can  have  no  effect  in  this 
cause,  except  such  as  is  derived  from  the  recital  in  tlie  pre- 
amble to  the  act  of  the  legislature  of  this  state.  The  act  has 
been  laid  before  us,  and  it  may  be  remarked  that  the  power 
granted  to  the  commissioners,  was  to  remove  obstructions  in 
the  channel,  or  otherwise  improve  the  navigation,  subject  to  a 
proviso  that  they  did  no  injury  to  private  property. 

At  the  former  trial,  the  defence  was  mainly  directed  to  the 
question,  whether  the  present  dam  was  erected  by  the  defend- 


NOVEMBER  TERM,  1873.  339 

Trenton  Water  Power  Co.  v.  Eaff. 

ants.  That  question,  with  others,  was  conclusively  settled  by 
the  former  verdict  and  judgment,  and  cannot  be  re-opened  for 
litigation  in  the  present  suit.  No  evidence  was  offered  on  that 
subject  in  this  suit  by  the  plaintiffs. 

The  New  Jersey  act  became  a  law  after  the  former  action 
was  commenced.  The  present  case  is  narrowed  down  to  the 
consideration  of  the  effect  of  that  act  upon  the  subject  matter 
of  this  litigation,  as  the  rights  of  the  parties  were  determined 
by  the  former  suit. 

The  title  of  the  latter  act  is,  "  An  act  relative  to  the  Tren- 
ton Water  Power  Company."  In  the  preamble  it  is  recited 
that,  whereas  the  commissioners  appointed  by  the  State  of 
Pennsylvania,  for  the  improvement  of  the  navigation  of  the 
river  Delaware,  have  restored  and  improved  the  dam  erected 
many  years  ago  at  Scudder's  Falls,  by  commissioners  duly 
appointed  for  that  purpose,  and  connected  the  same  with  the 
wing  dam  of  the  Trenton  Water  Power  Company,  whereby 
the  navigation  of  the  said  river  has  been  greatly  improved, 
and  the  supply  of  water  to  the  raceway  of  said  company  been 
made  sufficient  for  the  various  mills  depending  thereupon  for 
power;  and  whereas,  the  tenure  of  office  of  the  said  commis- 
sioners has  expired,  and  it  is  desirable  that  the  said  improve- 
ments should  be  permanently  maintained  and  protected  from 
damage.  The  enacting  clause  is  as  follows :  that  the  Tren- 
ton Water  Power  Company  is  hereby  authorized,  empowered 
and  required  to  maintain  and  protect  the  said  dam  at  Scud- 
der's Falls,  and  the  shute  or  passage  way  therein  for  rafts, 
boats  and  fish,  as  now  constructed,  so  that  the  navigation  of 
the  river,  and  the  supply  of  water  to  the  raceway  of  the  said 
company  may  be  secured  and  maintained.  Acts,  187l',  p. 
255. 

The  present  action  is  for  the  maintenance  of  the  dam.  The 
contention  of  counsel  on  the  argument  was,  that  the  dara 
having  been  erected  by  public  officers,  in  pursuance  of  legis- 
lative authority,  and  its  maintenance  being  imposed  on  the 
defendants,  as  a  duty,  by  the  act  of  1870,  no  action  will  lie 
for  the  injury  in  question. 


S40  KEW  JERSEY  SUPREME  COURT 

Trenton  Water  Power  Co.  v.  Raff. 

The  immunity  of  persons  acting  under  legislative  author- 
ity from  liability  to  actions  for  injuries  resulting  to  individ- 
uals, is  founded  on  the  theory  that  the  sovereign  will  do  no 
wrong,  and  that  indemnity  for  any  consequential  injury  a 
private  citizen  may  sustain,  will  be  made  as  an  act  of  grace. 
As  applied  to  the  acts  of  the  legislature  obtained  in  the  inter- 
est of  individuals  or  corporations,  the  hypothesis  that  the 
paternal  care  of  the  government  will  shield  the  citizen  from 
injustice,  is  not  confirmed  by  practice.  And  no  instance  is 
known  in  the  history  of  tiie  government,  of  an  appeal  to  the 
legislature,  by  the  private  individual,  for  compensation  for 
such  injuries.  Nor  is  there  any  reason  to  suppose  such  an 
appeal,  if  made,  would  be  attended  with  success.  A  rule 
resting  on  a  foundation  so  dubious,  the  operation  of  which 
may  impose  upon  individuals  a  loss  for  which  no  redress  is 
attainable,  should  be  confined  within  the  narrowest  bounds. 

In  this  state,  by  an  uniform  course  of  decision  of  long 
standing,  the  limits  of  the  application  of  this  doctrine  have 
been  established  with  precision,  leaving  no  uncertainty  as  to 
the  class  of  acts  which  are  within  its  operation. 

The  injuries  to  which  immunity  from  responsibility  at- 
taches, are  such  only  as  arise,  incidentally,  from  acts  done 
under  a  valid  act  of  the  legislature,  in  the  execution  of  a 
public  trust  for  the  public  benefit,  by  persons  acting  with  due 
skill  and  caution  within  the  scope  of  their  authority.  If  the  in- 
jury be  direct,  or  the  work  be  done  for  the  benefit  of  au  individ- 
ual or  corporation,  with  private  capital  and  for  private  emolu- 
ment, the  principle  which  absolves  the  parties  from  liability 
to  action  at  the  suit  of  persons  injured,  does  not  apply,  even 
though  the  public  be  incidentally  benefited  by  the  improve- 
ment. This  sul)ject  has  been  so  fully  discussed  by  Mr.  Jus- 
tice Nevius,  in  Slnnickson  v.  Johnson,  2  Harr.  150;  and 
Ten  Eyck  v.  The  Delaware  and  Raritan  Canal  Company,  3 
Ih.  200 ;  and  by  Chief  Justice  Green  in  The  Delaware 
and  Raritan  Canal  Co.  v.  Lee,  2  Zah.  243 ;  Tinsman  v.  The 
Bel.  Del.  R.  R.  Co.,  2  Dutcher  148 ;  and  Quinn  v.  City  of 
Paterson,  3  Dutcher  35,  that  further  discussion  and  citation  of 


NOVEMBER  TERM,  1873.  341 

Trenton  Water  Power  Co.  v.  Kaff. 

authorities  would  be  superfluous.  The  cases  cited  conclu- 
sively settle  the  law  in  this  state. 

The  act  of  1870  was  manifestly  passed  for  the  promotion 
of  the  private  interests  of  the  defendants.  Its  title  is  sug- 
gestive of  the  object  that  was  had  in  view.  In  the  preamble, 
the  increase  of  the  supply  of  water  to  create  power  which 
could  benefit  the  defendants  only,  is  conspicuously  mentioned 
as  one  of  the  ends  secured  by  the  improvement.  And  in  the 
enacting  clause,  the  company  is  required  to  maintain  the 
structure  for  the  two-fold  purpose  of  protection  to  navigation, 
and  the  supply  of  water  to  their  raceway.  The  imi)rove- 
raent  of  the  navigation  may  be  an  incidental  advantage  derived 
by  the  public,  and  may  have  been  an  inducement  to  the  legis- 
lature to  pass  the  act.  But  that  the  main  purpose  of  the  act 
was  the  promotion  of  the  private  interests  of  the  defendants, 
by  increasing  their  capacity  to  prosecute  their  business  and 
removing  the  restriction  put  in  their  charter  for  the  safety  of 
navigation,  is  too  plainly  shown  by  the  substance  of  the  act 
to  be  mistaken.  If  public  duties  exclusively  for  public  bene- 
fit had  been  enjoined,  why  should  the  defendants,  a  corpora- 
tion with  an  irrepealable  charter,  have  accepted  the  act,  and 
voluntarily  undertaken  the  performance  of  a  public  trust 
from  which  no  private  emolument  would  enure? 

Nor  will  the  fact  that  the  dam  was  located  and  built  under 
the  supervision  and  direction  of  commissioners  named  by  the 
legislature  relieve  the  defendants,  if  it  was  erected  and  is 
maintained  for  the  benefit  of  the  defendants,  and  for  their 
private  emolument.  Hooker  v.  N.  H.  &  N.  Co.,  15  Conn.  313. 
The  court  will  look  at  the  real  nature  of  the  act,  and  scru- 
tinize its  provisions  closely  before  they  will  clothe  its  pro- 
moters with  Uie  prerogative  of  the  sovereign  of  doing  wrong, 
without  being  compelled  to  make  satisfaction  in  damages. 

These  acts  of  the  legislatures  which  have  been  referred  to, 
having  been  passed  in  pursuance  of  the  power  of  the  legisla- 
ture of  the  two  states  to  regulate  fisheries  and  the  navigation 
of  the  river,  under  the  treaty  of  1783,  {Nix.  Dig.  967,)  may 
'have  the  eifect  to  make  lawful  a  structure  in  the  river  which 


342  NEW  JERSEY  SUPKEME  COURT. 

Trenton  Water  Power  Co.  v.  Kaff, 

otherwise  might  be  a  nuisance  in  impeding  the  passage  of 
fish,  rafts,  arks  and  boats,  contrary  to  the  proviso  in  the 
eighth  section  of  the  defendants'  charter;  but  they  do  not 
bring  the  defendants  within  the  pale  of  the  rule,  which,  under 
some  circumstances,  exempts  persons  executing  a  public  trust 
from  liability  for  resulting  injuries.  An  act  which  is  per- 
fectly lawful  in  one  sense,  may,  in  its  consequences,  occasion 
injuries  in  other  respects  for  which  an  action  will  lie.  A 
statute  authorizing  one  to  build  a  dam  in  a  river  which  is  a 
public  highway,  will  be  a  justification  so  far  as  public  inter- 
ests, such  as  navigation  and  fishery,  are  concerned,  and  will 
protect  the  grantee  from  indictment  or  any  action  for  infring- 
ing the  public  right,  but  will  be  no  justification  for  a  private 
injury  caused  by  the  overflow  of  the  lands  of  an  individual 
proprietor.  Crittenden  v.  Wilson,  5  Cow.  165  ;  The  Delaware 
&  Rantan  Canal  Co.  v.  Lee,  2  Zab.  243 ;  Sinnickson  v.  John- 
son, (per  Dayton,  J.,)  2  Harr.  151 ;  Tinsman  v.  The  B.  D.. 
R.  R.  Co.,  2  Dutcher  148 ;  Fletcher  v.  Aubu7-n,  and  Syracuse 
E.  R.  Co.,  25  Wend.  462 ;  Selden  v.  Del.  &  Hud.  C.  Co.,  24 
Barb.  362 ;  Eastman  v.  Amoskeag  Mfg.  Co.,  44  New  Hamp^ 
143;  Hooksett  v.  Amoskeag  Mfg.  Co.,  lb.  106;  Amoskeag 
3Ifg.  Co.  V.  Goodale,  46  lb.  53. 

But  if  the  court  had  reached  a  different  conclusion  as  to  the^ 
nature  and  purport  of  these  acts  of  the  legislature,  another 
impediment  would  lie  in  the  way  of  giving  them  the  effect 
contended  for  by  the  defendants.  The  creek,  on  which  the 
plaintiffs'  mill  is  located,  is  a  fresh  water  stream,  which  dis- 
charges its  waters  into  the  river  above  the  ebb  and  flow  of 
the  tide.  The  soil  in  the  bed  of  the  stream  is  the  private 
property  of  the  plaintiffs.  Cobb  v.  Davenport,  3  Vroom  369. 
Incident  to  their  private  ownership,  as  an  appurtenant  to  their 
lands,  is  the  right  to  the  natural  descent  of  the  stream  and 
the  unobstructed  flow  of  its  waters  over  their  lands,  and  their 
discharge  upon  the  lands  of  the  lower  proprietor.  Thi& 
right  is  part  of  their  freehold,  and  as  much  property  as  the 
title  to  the  soil,  which  they  cannot  be  deprived  of  without  their 
consent,  except  on  just  compensation  made.  Gardner  v.. 
Village  of  Newburgh,  3  Johns.  Ch.  162.    The  defence  proposed 


NOVEMBER  TERM,  1873.  34a 

Trenton  Water  Power  Co.  v.  Eaff. 

to  be  made  under  these  acts,  is  a  justification  on  the  ground 
that  the  defendants,  by  legislative  grant,  had  obtained  the 
power  to  deprive  the  plaintiffs  of  the  natural  flow  of  the 
waters  of  the  creek,  and  acquired  an  easement  of  the  right  to 
flow  their  lands. 

The  destruction  of  private  property,  either  total  or  partial,, 
or  the  diminution  of  its  value  by  an  act  of  the  government, 
directly,  and  not  merely  incidentally  affecting  it,  which  deprives 
the  owner  of  tlie  ordinary  use  of  it,  is  a  taking  within  the 
meaning  of  the  constitutional  provision,  and  the  power  can 
only  be  exercised  under  the  right  of  eminent  domain,  subject 
to  the  constitutional  limitation  of  making  just  compensation. 
American  Print  Works  v.  Lawrence,  1  Zab.  248 ;  Hale  v. 
Latorence,  lb.  714;  Glover  v.  Poivell,  2  StocJct.  211 ;  Cooley  on 
Const.  Lim.  544.  Under  this  constitutional  prohibition,  it  is 
not  competent  for  the  legislature  to  deprive  an  individual  of 
the  advantages  of  a  stream  of  water  in  its  ordinary  and  natu- 
ral flow  over  his  lands,  or  to  create  an  easement  in  his  lands 
of  the  right  to  overflow,  without  providing  compensation  for 
the  injury.  SinnicksoJi  v.  Johnson,  2  Harr.  129;  Ten  Eych 
V.  Del.  &  Bar.  Canal  Co.,  3  lb.  201 ;  Pumpelley  v.  Green 
Bay  Co.,  13  Wallace  166.  If  compensation  has  not  been 
made  under  special  provisions  contained  in  the  act,  which 
authorizes  such  interference  with  private  property,  the  party 
injured  may  have  redress  by  action  for  damages,  or  by  injunc- 
tion. Sinnickson  v.  Johnson,  2  Harr.  129;  Carson  v.  Cole- 
man, 3  Stockt.  106;  Gardner  v.  Village  of  Newburgh,  2  Johns. 
Ch.  162;  Calking  v.  Baldioin,  4  Wend.  667;  Selden  v.  Del. 
&  Hud.  Canal  Co.,  24  Barb.  362 ;  Robinson  v.  N.  Y.  &  E. 
P.  R.  Co.,  27  lb.  512;  Angell  on  Water  Courses,  §  465  a/ 
Ash  v.  Cummings,  50  New  Hamp.  591. 

The  decision  of  the  court  excluding  these  acts  from  being 
evidence,  was  correct.  They  could  not  operate  to  establish  the 
justification  on  which  the  defendants  rely,  nor  to  exclude  the 
plaintiffs  from  the  right  to  maintain  their  action.  The  judg- 
ment should  be  affirmed. 

Cited  in  WilUamson  v.  JV.  J.  Southern  B.  B.  Co.,  2  Slew.  Eq.  311 ;  Le- 
high Valley  B.  B.  Co.  v.  McFarlan,  4  Stew.  Eq.  706. 


344  NEW  JERSEY  SUPREME  COURT. 


Steelman  v.  Mattix  et  al. 


MARY  L.  STEELMAN,  BY  HER  NEXT  FRIEND,  v.  NATHAN 
P.  MATTIX  ET  AL. 

1.  Oar  state  insolvent  laws  are  not  bankrupt  laws,  and  are  not  suspended 
by  the  passage  of  the  national  bankrupt  act.  Query.  Whether  they 
would  be  suspended  if  they  were  bankrupt  laws? 

2.  In  a  case  not  provided  for  by  the  national  authority,  the  force  of  state 
legislation  is  undisturbed,  for  no  conflict  can  arise  between  the  two 
jurisdictions. 

3.  If  our  state  insolvent  laws  are  suspended,  a  bond  given  under  the  act 
of  April  15th,  1846,  [Nix.  Dig.  386,)  is  obligatory. 


In  debt.     On  demurrer  to  declaration. 

Argued  at  June  Term,  1873,  before  Beasley,  Chief  Jus- 
tice, and  Justices  Dalrimple,  Depue  and  Van  Syckel. 

For  the  plaintiffs,  F.  F.  Wesicott. 

For  the  defendants,  P.  L.  Voorhees  and  A.  Browning. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  This  suit  was  instituted  upon  a  bond 
•executed  by  Nathan  P.  Mattix  and  his  sureties,  under  the 
second  section  of  the  act  entitled,  "An  act  abolishing  impris- 
onment on  civil  process  in  certain  cases."  Nix.  Dig.  386,  j^- 
9.  One  of  the  breaches  assigned  in  the  declaration  is,  that  the 
said  Mattix,  after  he  was  refused  his  discharge  under  the  in- 
solvent laws  of  this  state,  did  not  surrender  himself  to  the 
sheriff,  out  of  whose  custody  he  had  been  liberated. 

To  this  declaration  there  is  a  general  demurrer,  upon  the 
ground  that  the  bond  is  void,  because  the  act  under  which  it 
was  given  was  superseded  or  suspended  by  the  national  bank- 
rupt law. 

It  is  admitted  that  the  authority  given  to  congre&s  to  es- 
tablish uniform  laws  on  the  subject  of  bankruptcy,  does  not 


NOVEMBER  TERM,  1873.  345 

Steelman  v.  Mattix  et  al. 

restrict  the  power  of  the  states  over  the  same  subject,  until 
the  power  of  congress  is  actually  exercised. 

Whether  the  enactment  of  the  national  law  ipso  facto  nulli- 
fies the  operation  of  state  laws,  or  whether  proceedings  may 
be  instituted  and  continued  under  state  laws,  until  proceed- 
ings are  actually  taken  under  the  federal  law,  are  questions 
which  have  been  much  discussed,  but  they  are  not  necessarily 
involved  in  this  case,  and,  therefore,  no  opinion  will  be  ex- 
pressed in  regard  to  them. 

The  subject  is  divisible  into  bankrupt  and  insolvent  laws, 
but  the  difficulty  of  defining  with  accuracy  what  belongs  to 
the  one  and  not  to  the  other  class,  is  recognized  in  the  prin- 
cipal case,  Sturges  v.  Crowningshield,  4  Wheat.  122. 

The  line  of  separation  may  be  an  arbitrary  one,  and 
without  attempting  to  establish  any  rule  by  which  laws  of 
this  character  may  be  classified,  it  will  be  sufficient  if  we  caO' 
say  with  confidence  that  the  act  now  in  question  is  so  far  re- 
moved from  the  line  of  demarcation,  that  its  character  is  not 
doubtful. 

It  is  an  act  to  abolish  imprisonment  on  civil  process  in^ 
certain  cases.  It  applies  to  the  single  instance  of  involun- 
tary confinement,  and  its  aim  and  purpose  is  simply  to  liber- 
ate the  person.  It  has  neither  the  scope,  nor  does  it  subserve 
the  end  of  a  bankrupt  law.  The  person  who  invokes  its  aid 
must  not  necessarily  be  bankrupt  or  insolvent — he  need  only 
be  incarcerated  on  civil  process  against  his  will. 

It  is  true  that  his  property  is  sequestered  and  distributed 
among  his  creditors,  but  so  it  is  under  the  attachment  act,  the 
assignment  act,  and  the  act  applying  to  the  estates  of  dece- 
dents; the  distribution  of  the  property  is  merely  incidental, 
and  does  not  discharge  the  debt.  This  was  not  a  proceeding  in 
bankruptcy,  and  would  no  more  come  in  conflict  with  the  law 
•of  congress  than  a  suit  prosecuted  to  judgment  and  execution; 
in  either  case  the  assignee  in  bankruptcy  would  take  the 
debtor's  property  out  of  the  control  of  the  state  court.  The 
power  given  to  congress  over  this  subject  is  plenary,  and 
when  it  has  been  exercised,  all  state  legislation,  and  all  pro- 


346  NEW  JERSEY  SUPREME  COURT. 

Steelman  v.  Mattix  et  al. 

•ceedings  in  state  courts,  which  actually  come  in  couflict  with 
it,  must  yield  to  the  paramount  authority  of  the  general  gov- 
ernment. It  would  seem  necessarily  to  result,  that  when 
congress  has  constitutionally  passed  a  law  upon  this  subject, 
state  law,  designed  to  accomplish  substantially  the  same  pur- 
pose, must  fall. 

Uniformity  cannot  exist  with  jurisdiction  in  the  state  and 
federal  courts  in  operation  at  the  same  time  over  the  same 
subject  matter,  to  secure  substantially  the  same  result. 

The  fact  that  under  certain  conditions  the  state  courts  are 
vested  with  authority  to  control  and  administer  the  debtor's 
property  for  the  benefit  of  creditors,  is  not,  of  itself,  conclu- 
sive as  to  the  validity  of  the  state  law. 

It  is  held  that  a  state  insolvent  law,  which  supplies  the 
mode  of  administering  insolvent  estates,  under  such  assign- 
ments made  by  debtors  for  the  benefit  of  creditors  as  would 
be  valid  at  common  law,  without  the  aid  of  any  statute,  and 
wiiich  could  be  enforced  by  a  court  of  equity  like  any  other 
trust,  is  not  suspended.  Hawkins^  Appeal,  8  Am.  L.  R.  205 ; 
Beck  V.  Parker,  65  Penn.  262. 

So  when  a  bankrupt  act  expressly  excepts  a  class  of  cases, 
it  must  have  been  the  intention  of  congress  not  to  interfere 
In  such  specified  class  with  the  laws  of  the  several  states.  In 
re  Wlntermitz,  18  Pittsburgh  L.  J.  61. 

This  recognizes  the  corollary  that  in  a  case  not  provided 
for  by  the  national  authority,  the  force  of  state  legislation  is 
undisturbed,  for  no  conflict  can  possibly  arise  between  the  two 
jurisdictions. 

Our  state  law  in  question  is  of  this  class,  where  a  debtor, 
prior  to  the  institution  of  proceedings  in  bankruptcy,  is  im- 
prisoned on  civil  process  issued  out  of  the  state  court,  the 
federal  law  furnishes  no  means  of  discharging  him  from  con- 
finement, and,  therefore,  if  this  state  law  is  held  to  be  sus- 
pended, the  prisoner  is  without  relief,  and  subject  to  lifelong 
incarceration.  When  the  federal  law  is  put  into  actual  opera- 
tion, the  superior  title  of  the  assignee  in  bankruptcy  to  the 


NOVEMBER  TERM,  1873.  347 

Steelman  v.  Mattix  et  al. 

property  of  the  debtor,  would  assert  itself  in  the  same  way, 
that  it  would  prevail  over  the  tit4e  of  the  sheriff  acquired  by 
virtue  of  his  executions,  in  certain  specified  cases. 

But  if  our  insolvent  laws  shall  be  regarded  as  bankrupt 
laws,  and  it  is  held  that  they  are  superseded  or  suspended,  the 
act  under  which  this  bond  is  given,  is  still  in  full  force,  and 
the  bond  is  obligatory.  Under  that  construction  it  may  be 
questioned  whether,  while  the  act  of  April  15th,  1846,  remains 
upon  our  statute  book,  the  sheriff  could  refuse  to  accept  the 
bond.  The  condition  is,  that  the  debtor  shall  apply  fo^:  the 
benefit  of  the  insolvent  laws  of  this  state,  and  if  he  fails  to  be 
discharged,  shall  surrender  himself  to  the  officer.  The  under- 
taking is  in  the  alternative,  either  to  obtain  a  discharge  under 
a  law  which  is  no  longer  effective,  or  to  return  to  the  condi- 
tion from  which  he  was  I'eleased.  Failing  in  the  former,  he 
must  perform  the  latter;  this  obligation  is  neither  to  do- that 
which  is  unlawful  or  impossible.  When  application  is  made 
to  the  state  court  for  a  discharge,  the  debtor  would  be  remanded 
to  custody,  either  because  he  did  not  comply  with  the  provis- 
ions of  the  state  law,  or  for  the  reason  that  the  state  court  had 
no  power  in  the  premises. 

As  the  pleadings  stand,  the  defendant  has  failed  to  comply 
with  the  condition  of  his  bond,  and  the  demurrer,  therefore, 
«hould  be  overruled,  with  costs. 


348         NEW  JERSEY  SUPREME  COURT. 


Glassford  v.  Davis. 


JAMES  GLASSFORD  v.  GEORGE  D.  DAVIS. 

1.  Action  against  the  endorser  of  a  promissory  note,  in  which  there  was 
no  evidence  of  demand  and  notice.  The  plaintiflF  relied  on  a  new 
promise  by  tlie  endorser,  who  testified  that  he  had  received  no  notice. 
Held,  that  the  plaintiff  must  show,  that  at  the  time  of  the  new  prom- 
ise, the  endorser  knew  that  no  notice  had  been  mailed. 

2.  Query:  Whether,  in  the  first  instance,  the  plaintiff  must  show  not 
only  the  new  promise,  but  knowledge  by  the  defendant  of  the  laches, 
or  whether,  upon  proof  of  the  new  promise,  the  presumption  will 
arise  that  demand  of  payment  was  regularly  made,  and  notice  duly 
given  to  charge  the  endorser  ? 


On  rule  to  show  cause. 

Argued  at  June  Term,  1873,  before  the  Chief  Justice, 
and  Justices  Depue,  Dalrimple  and  Van  Sygkel. 

For  the  plaintiff,  /.  Dixon. 

For  the  defendant,  S.  B.  Ransom. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  This  action  is  against  Davis,  the  en- 
dorser of  a  promissory  note,  dated  November  22d,  1870,  for 
$600,  drawn  by  one  George  W.  Conklin  to  the  defendant's 
order. 

The  only  evidence  offered  on  the  trial  of  the  cause  to  show 
demand,  and  notice  to  the  endorser  was  that  of  the  notary, 
who,  on  his  cross-examination,  testified  that  he  did  not  know 
anything  about  it,  of  his  own  knowledge,  but  that  he  believed 
payment  was  demanded,  and  notif*  of  non-payment  mailed  to 
the  endorser  by  his  protest  clerk. 

The  plaintiff  also  offered  evidence  to  show,  that  after  the 
maturity  of  the  note,  the  endorser  promised  to  pay  it,  and  then 
rested  his  cause. 

The  defendant  then  moved  for  a  non-suit,  which  the  court, 
declined  to  grant. 


NOVEMBER  TERM,  1873.  349 

Glassford  v.  Davis. 

The  first  point  taken  by  the  defendant's  counsel  is,  that  the 
court  below  erred  in  refusing  to  non-suit. 

The  question  was  raised,  whether,  in  the  absence  of  any- 
proof  upon  the  subject,  the  presumption  will  arise  from  the 
new  promise  that  the  demand  of  payment  was  regularly" 
made,  and  notice  of  non-payment  duly  given  to  charge  the 
endorser. 

The  doctrines  of  presumption  and  of  waiver  rest  upon 
wholly  different  grounds,  although  in  many  of  the  adjudged 
cases  the  distinction  between  them  has  not  been  clearly  drawn 
or  adverted  to.  The  former  rests  upon  our  common  experi- 
ence, that  men  will  not  promise  to  do  what  they  are  under  no 
obligation  to  perform,  and  what  they  receive  no  consideration 
for  doing,  and  therefore  the  promise  is  held  to  be  presump- 
tive evidence,  that  the  endorser  knows  that  all  things  have 
been  rightly  done  to  hold  him.  "Waiver  is  the  opposite  of 
this.  The  endorser  is  held  upon  the  ground  that  he  expressly 
waives  the  defence  which  he  might  have  set  up.  But  no  one 
can  waive  anything,  of  the  existence  of  which  he  has  no 
notice,  and  therefore  he  must  be  conscious,  at  the  time  of  the 
new  promise,  of  all  the  facts  which  in  law  are  essential  to  dis- 
charge him  from  liability.  If  the  doctrine  of  presumption 
prevails,  its  only  effect  is  to  shift  the  burden  of  proof.  The 
plaintiff  may  rest  upon  proof  of  the  new  promise,  and  thua 
throw  upon  the  endorser  the  double  burden  of  showing  laches, 
and  his  want  of  knowledge  of  such  laches. 

The  doctrine  of  presumption  is  supported  by  a  line  of  Eng- 
lish cases,  from  Vaughn  v.  Fuller,  reported  in  2  ;S'^?'.  1246,. 
down  to  Hicks  v.  Beaufort,  in  4  Bi7ig.  N.  C.  229,  showing 
that  from  the  new  promise,  every  diversity  of  fact  necessary 
to  charge  the  endorser  or  drawer,  is  to  be  inferred.  Present- 
ment for  acceptance,  presentment  for  payment,  notice  of  non- 
payment and  non-acceptance,  and  the  want  of  effects  in  the 
hands  of  the  drawee,  have  all  been  presumed. 

To  charge  the  endorser,  it  has  not  been  suggested  by  the 
court  in  any  of  these  cases  that  it  was  necessary  to  show  that 
he  was  aware  of  laches. 

Vol.  VII.  22 


350  NEW  JERSEY  SUPREME  COURT. 

Glassford  v.  Davis. 

It  would  be  a  contradiction  in  terms,  to  say  that  the  jury- 
might  infer  from  the  promise  that  all  things  were  rightly 
done  by  the  holder,  if  he  is  required  to  prove  that  the  en- 
dorser had  knowledge  of  laches. 

The  rule  laid  down  in  these  cases  referred  to,  was  npt  fol- 
lowed by  Chief  Justice  Horublower,  in  Barkalow  v.  Johnson, 
1  Harr.  397,  nor  were  the  cases  themselves  cited.  In  Bles- 
ard  V.  Hirst,  5  Burr.  2670,  and  Goodad  v.  Dolley,  1  T.  R.  712, 
referred  to  by  the  Chief  Justice  with  approval,  the  laches  ap- 
peared afiSrmatively.  It  may  also  be  remarked,  that  in  Barka- 
low  t'.  Johnson,  the  new  promise  and  offer  to  pay  was  condi- 
tional, and  was  not  accepted.  That  case,  therefore,  was  rightly 
decided,  whether  the  doctrine  of  presumption  is  adopted  or 
not.  If  the  rule,  as  broadly  as  it  is  stated  by  Chief  Justice 
Hornblower,  had  been  applied  to  this  case,  the  defendant  was 
entitled  to  a  non-suit  when  the  plaintiff  rested.  If  the  plain- 
tiff must  show,  in  the  first  instance,  not  only  the  promise,  but 
at  the  time  of  the  promise  a  knowledge  of  the  laches,  the  doc- 
trine of  presumption  is  necessarily  swept  away,  and  recovery 
on  the  promise  must  stand  wholly  on  the  ground  of  waiver 
of  a  known  defence. 

It  is  not  necessary  to  settle  the  true  rule  in  this  case.  If 
the  burden  of  proof  was  thrown  upon  the  defendant  by  the 
promise  to  pay,  a  slight  circumstance  should  be  sufficient  to 
cast  it  back  again  upon  the  plaintiff,  who  must  be  sup])osed 
to  be  better  able  to  establish  an  affirmative  fact  than  the  de- 
fendant to  show  a  negative. 

After  the  refusal  to  non-suit,  the  defendant  testified  that  he 
liad  received  no  notice  of  protest,  and  this,  if  true,  showed 
that  the  regularity  of  the  proceedings  was  interrupted,  and 
was  sufficient  to  overcome  any  presumption  that  all  things 
were  rightly  done. 

It  became  necessary  then  for  the  plaintiff  to  put  his  case 
upon  the  ground  of  waiver,  and  to  show  that  the  defendant 
made  the  promise  with  full  knowledge  that  he  was  not  legally 
liable. 

There  is  no  substantial  consideration  to  support  such  new 


NOVEMBER  TERM,  1873.  351 

Glassford  v.  Davis. 

promise  on  the  part  of  an  endorser  to  pay  a  note  for  which 
he  is  neither  legally  or  equitably  liable.  The  rule,  however, 
is  now  so  firmly  established  that  it  cannot  be  abrogated, 
although  the  contract  it  enforces  is  not  only  without  consid- 
eration, but  it  is  questionable  whether  it  is  not  a  parol  agree- 
ment to  pay  the  debt  of  another,  and  its  enforcement, 
therefore,  in  contravention  of  the  statute  of  frauds.  Courts 
oan  and  should  require  the  strictest  evidence  of  all  the  facts 
necessary  to  render  the  new  promise  effective. 

The  court  charged  the  jury  that  if  the  defendant  expressly 
promised  to  pay  the  note,  conscious  of  the  holder's  laches,  he 
was  bound. 

This  was  a  correct  statement  of  the  general  rule  of  law. 
The  endorser,  to  be  charged  by  his  new  undertaking,  must 
know  that  he  was  discharged  at  the  time  he  entered  into  it. 
He  knew  that  he  had  received  no  notice,  but  from  that  fact 
it  does  not  necessarily  follow  that  payment  was  not  demanded, 
or  that  notice  was  not  mailed. 

If  such  demand  was  made,  and  notice  mailed  in  season, 
there  was  no  laches,  and  therefore  it  should  have  been  left  to 
the  jury  to  determine,  under  all  the  circumstances  of  the 
case,  whether,  in  making  the  new  agreement,  the  defendant 
acted  upon  the  belief  that  the  holder  of  the  note  had,  ia 
either  of  these  respects,  been  guilty  of  neglect. 

If  he  believed,  at  that  time,  that  he  was  still  liable  on  his 
original  contract  of  endorsement,  the  new  promise  has  no  obli- 
gation. 

I  am  therefore  of  opinion  that  a  new  trial  shoald  be 
granted. 


352  NEW  JERSEY  SUPREME  COURT. 

Todd  &  Rafferty  v.  Hoagland  et  al. 

JOSEPH  TODD  AND  PHILIP  RAFFERTY,  PARTNERS,  Ac,  v. 
THEODORE  F.  HOAGLAND,  LUTHER  AND  MARTIN  L. 
VANDERVEER,  AND  AARON  L.  GREEN. 

1.  A  sheriff  is  bound  to  exercise  reasonable  care  and  judgment  in  the 
management  of  his  sales,  so  that  tlie  property  levied  on  may  be  sold 
to  the  best  advantage  to  make  the  money,  subject,  of  course,  to  all 
the  requirements  of  the  statutes  affecting  sheriffs'  sales. 

2.  If  there  is  a  failure  of  bidders,  or  the  circumstances  of  the  sale  are 
such  as  to  show  that  the  property  will  be  sold  for  a  price  unreasonably 
inad-equate  to  what  it  ought  to  bring  at  a  sheriff's  sale,  it  is  the  duty 
of  a  sheriff,  unless  otherwise  ordered,  and  where  the  creditor  is  likely 
to  be  benefited,  to  adjourn  the  sale  for  another  opportunity. 

3.  It  is  the  duty  of  a  sheriff  to  make  the  money  on  an  execution,  if  by 
fair  judgment  and  skill  it  can  be  done  according  to  the  modes  pro- 
vided by  the  law.  His  discretion  should  be  liberally  considered  in- 
the  absence  of  bad  faith,  yet,  the  sheriff  is  responsible  for  a  clear 
neglect  of  its  proper  exercise  to  the  measure  stated. 

4.  Tte  mere  fact  of  the  non-return  of  an  execution  is  not  suflScient  to 
justify  an  amercement,  yet  if  an  inventory  should  be  filed,  there  being 
goods  upon  which  it  might  operate  with  effect,  the  fact  that  there  ia- 
none  filed  is  ground  for  amercement. 


On  motion  to  amerce  the  sheriff  of  Somerset  county. 

Argued  at  June  Term,  1873,  before  Justices  Bedle, 
^YooDHULL.  and  Scuddee. 

For  the  motion,  A.  V.  Van  Fleet. 

The  opinion  of  the  court  was  delivered  by 

Bedle,  J.  The  sheriff  is  bound  to  exercise  reasonable 
care  and  judgment  in  the  management  of  his  sales,  so  that 
the  property  levied  on  may  be  sold  to  the  best  advantage  ta 
make  the  money,  subject,  of  course,  to  all  the  requirements 
of  the  statutes  affecting  sheriffs'  sales.  If  there  is  a  failure 
of  bidders,  or  the  circumstances  of  the  sale  are  such  as  to 
show  that  the  property  will  be  sold  for  a  price  unreasonably 
inadequate  to  what  it  ought  to  bring  at  a  sheriff's  sale,  it  is 
the  duty  of  the  sheriff,  unless  otherwise  ordered,  and  where 
the  creditor  is  likely  to  be  benefited  by  it,  to  adjourn  the  sale 
for  another  opportunity.     His  duty  is  to  make  the  money  ott 


NOVEMBER  TERM,  1873.  353 

Todd  &'Eafferty  v.  Hoagland  et  al. 

the  execution,  if  by  fair  judgment  and  skill  it  can  be  done 
according  to  the  modes  provided  by  the  law.  His  discretion 
should  be  liberally  considered  in  the  absence  of  bad  faith,  yet 
the  sheriff  is  responsible  for  a  clear  neglect  of  its  proper  exer- 
cise, according  to  the  measure  stated.  Shearman  on  Negli- 
gence, §  532 ;  Addison  on  Torts  626  ;  Crocker  on  Sheriffs  4S8 ; 
Wright  V.  Child,  L.  R.,  1  Exch.  354. 

Where  there  are  two  or  more  executions,  the  same  princi- 
ples will  apply,  having  a  due  regard  to  the  interests  of  all  the 
plaintiffs,  and  so  as  to  make  the  money  for  all,  if  it  can  be 
jlone. 

In  the  case  before  us,  the  ji.  fa,  came  to  the  hands  of  the 
sheriff  June  1st,  187],  and  a  levy  was  made  June  3d,  upon  a 
«tock  of  goods  in  a  store  kept  by  the  two  defendants,  Vander- 
veers,  at  Rocky  Hill. 

The  plaintiffs  and  their  attorney  resided  at  Patersou.  The 
-sheriff,  previous  to  June  1st,  had  made  a  levy  on  the  same 
goods,  under  an  execution  on  a  judgment  confessed  by  the 
Vanderveez's,  to  one  Cornelius  M.  Vreeland,  for  §2000  and 
$5  costs.  The  amount  of  the  plaintiffs'  execution  was  $588.85, 
including  debt  and  costs.  At  the  date  of  the  plaintiffs'  levy, 
the  amount  of  the  two  executions,  besides  sheriff's  fees,  was 
about  $2612. 

The  stock  of  goods  levied  on  had  cost  about  $4000.  From 
June  3d  to  July  17th  following,  the  sheriff  allowed  the  two 
defendants  to  continue  their  business  as  usual,  he  not  receiving 
any  of  the  proceeds  of  their  sales. 

On  July  17th  he  took  possession  by  appointing  John  P. 
Suydam  his  deputy  and  leaving  him  in  charge  of  the  store, 
he  to  receive  the  money  for  what  sales  were  made,  and  to  ac- 
•count  to  the  sheriff  for  it.  Suydam  was  then  the  owner  of 
or  had  control  of  the  Vreeland  judgment,  and  from  the  tes- 
timony was  evidently  friendly  to  the  Vanderveers,  the  sheriff 
understanding  that  fact.  The  sheriff  advertised  the  sale  for 
July  22d,  but  having  neglected  to  inform  Todd  and  Rafferty, 
or  their  attorney,  he  adjourned  it  to  July  25th.  After  that, 
•on  July  22d,  he  telegraphed  to  plaintiffs'  attorney  that  the 


254  NEW  JERSEY  SUPREME  COURT. 


Todd  &  Rafferty  v.  Hoagland  et  al. 


sale  would  take  place  on  the  25th,  but  the  message  did  not 
reach  there  until  the  morning  of  the  23d.  On  the  24th  the 
plaintiff,  Todd,  went  to  Somerville,  reaching  there  at  twelve 
o'clock,  but  not  being  able  to  find  the  sheriff  till  five  o'clock 
that  afternoon,  when  he  requested  the  sheriff  to  postpone  the 
sale  on  account  of  a  want  of  sufficient  notice  to  him,  so  that 
he  could  get  competent  persons  to  examine  the  goods  and 
ascertain  their  value.  The  sheriff  refused.  Todd  remained 
there  over  night  and  attended  at  the  place  of  sale,  having 
that  morning  'again  requested  the  sheriff  to  postpone  for  a 
few  days;  Todd  offering  to  pay  the  expenses  of  advertising 
again,  and  also  that  he  would  give  the  sale  all  the  publicity 
possible  by  handbills.  The  sheriff  again  declined  to  adjourn, 
and  the  sale  went  on.  The  bidders  were  few,  and  Suydam 
bought  the  most  of  the  goods.  It  is  clear  that  an  adjourn- 
ment for  a  short  time  would  not  have  prejudiced  Suydam  in 
making  his  money,  if  that  was  his  only  purpose,  and  it  is 
more  than  probable  from  *the  evidence  that  it  would  have 
enabled  Todd  and  Rafferty  to  have  realized  part  if  not  the 
whole  of  their  claim.  The  goods  were  needlessly  sacrificed,, 
having  sold  for  not  more  than  one  half  of  their  cost,  and  the 
sale  appears  to  have  been  conducted  in  the  interests  of  the 
first  execution  creditor,  if  not  of  the  defendants,  and  without 
a  due  regard  io  the  plaintiffs  in  this  case.  The  sheriff  should 
have  adjourned  the  sale  as  requested,  as  there  M'as  fair  reason 
to  believe  that  part,  if  not  the  whole,  could  have  been  made 
on  the  second  execution,  and  when  there  was  no  risk  of  any 
loss  to  the  first  execution  creditor  by  the  delay.  This  duty  was 
also  more  imperative  from  the  fact  that  without  any  authority 
from  Todd  and  Rafferty  or  their  attorney,  the  sheriff  had 
allowed  the  Vanderveers  to  continue  their  trade  without  in- 
terference, and  without  giving  any  information  of  the  condi- 
tion of  the  execution  till  June  20th,  when  he  wrote  to 
})laintiffs  attorney  of  the  fact  of  the  first  execution,  and  gave 
his  opinion  that  the  Vanderveers  would  pay  if  left  alone, 
tliev  needing  only  a  little  time,  and  to  which  the  attorney 
replied,  within  a  week  afterwards  :  "  Do  the  best  you  can  for 


NOVEMBER  TERM,  1873.  355 

Todd  &  Rafferty  v.  Hoagland  et  al, 

my  clients."  From  this  the  sheriff  knew  that  the  plaintiffs 
were  depending  upon  his  judgment  as  to  the  time  of  enforcing 
the  levy,  and  when  pressed  under  the  first  execution,  or  when 
he  concluded  to  sell,  he  should  have  given  the  plaintiffs  a  fair 
chance  to  obtain  their  money  from  the  sale.  How  far  that 
reply  of  the  attorney  may  relieve  the  sheriff  from  responsi- 
bility for  the  reduction  of  the  stock  between  the  levy  and  the 
time  he  took  possession,  less  the  amount  that  it  was  replen- 
ished by  purchases,  need  not  be  determined ;  it  is  sufficient, 
however,  to  state  that  it  could  not  relieve  the  sheriff  from  his 
official  duty  in  regard  to  the  conduct  or  management  of  the 
sale.  In  that  respect,  by  refusing  the  adjournment  under  the 
circumstances,  he  failed  in  his  duty. 

Another  point  is  also  made,  that  the  sheriff  did  not  comply 
with  the  statute  in  filing  a  just  and  true  inventory.  The^. 
fa.  was  returnable  at  the  June  Term,  1871,  but  was  not  re- 
turnable when  this  motion  to  amerce  was  made.  Since  then 
it  has  been  produced  with  the  return  nulla  bona.  There  ac- 
companies the  writ  a  general  levy  upon  the  goods,  but  not  of 
sufficient  particularity  to  amount  to  the  inventory  required  by 
the  law.  Watson  v.  Hoel,  Coxe  136;  Hustick  v.  Allen,  lb, 
168;  Lloyd  v.  Wyckoff,  6  Halst.  218.  That  levy  seems  to 
have  been  kept  by  the  sheriff  in  his  docket,  and  must  have 
been  annexed  to  the  writ  during  the  progress  of  these  present 
proceedings.  The  inventory  would  have  been  immaterial  to 
the  plaintiff  had  it  been  entirely  clear  that  nothing  could 
have  been  made  under  the  second  execution,  but  when  it  did 
not  so  appear,  it  was  the  duty  of  the  sheriff  to  make  his  in- 
ventory, for  it  is  an  advantage  to,  and  the  right  of  subsequent 
judgment  creditors  to  know,  with  reasonable  accuracy,  what 
property  there  is  from  which  the  money  may  possibly  be 
made.  The  mere  fact  of  the  non-return  of  the  writ  is  not 
sufficient  to  justify  an  amercement,  yet  if  an  inventory  should 
be  filed,  there  being  goods  upon  which  it  might  operate  with 
effect,  the  fact  that  there  is  none  filed  is  ground  for  amerce- 
ment.    In  this  case  the  sheriff  was  bound  to  return  his  writ 


'866  NEW  JERSEY~SUPREME  COURT. 

Gaskill  V.  Overseer  of  Poor  of  Downe. 

with  the  inventory,  unless  that  duty  was  dispensed  with  by 
the  plaintiffs'  attorney. 

The  only  fact  bearing  on  that  claimed  by  the  sheriff  is  the 
letter  of  the  attorney,  and  I  cannot  see  how  that,  with  a 
liberal  construction,  can  have  more  effect  than  to  permit  the 
sheriff  to  exercise  his  discretion  (not  the  plaintiffs',)  as  to  the 
propriety  of  an  immediate  sale,  and  perhaps  as  to  taking 
actual  possession  of  the  goods.  Beyond  that,  it  was  the  duty 
of  the  sheriff  to  perfect  his  levy,  and  furnish  the  full  evidence 
of  it,  by  the  inventory  required  by  the  statute. 

The  sheriff  must  be  amerced  in  the  amount  of  the  plain- 
tiffs' execution,  with  costs. 

Judgment  affirmed,  8  Vr.  544. 


SHEPFARD  GASKILL  v.  THE  OVERSEER  OF  THE  POOR  OF 
THE  TOWNSHIP  OF  DOWNE. 

1.  Where,  in  a  matter  of  bastardy,  the  finding  of  the  jury  was  "guilty," 
and  the  justices  made  the  record  of  it  in  these  words :  "  Tliat  the  de- 
fendant, S.  G.,  was.  guihy,  and  the  putative  father  of  the  said  bastard 
child" — Held,  that  the  verdict  of  guilty  could  mean  nothing  else  than 
that  the  defendant  was  guilty  of  the  accusation ;  or,  in  other  words, 
the  father  of  the  child,  and  that  the  justices  were  justified  in  making 
the  entry  in  form,  according  to  the  necessary  meaning  of  the  finding. 

2.  Where  the  order  of  bastardy  determines  that  the  child  is  chargeable 
to  the  township,  this  court  will  not,  in  the  absence  of  evidence  of  pay- 
ment, or  agreement  to  pay,  on  the  part  of  the  township,  for  tlie  sup- 
port of  the  mother  and  child,  conclude  that  the  child  was  not  chargea- 
ble to  the  township,  contrary  to  what  appears  on  the  face  of  the  order. 


On  certiorari.     In  case  of  bastardy. 

Argued  at  June  Term,  1873,  before  Justices  Bedle,  "Wood- 
hull  and  ScuDDER. 


NOVEMBER  TERM,  1873.  357 

Gaskill  V.  Overseer  of  Poor  of  Downe. 
For  the  plaintiflP  in  certiorari,  F.  F.  WesiGott. 

For  the  defendant,  W.  E.  Potter. 

The  opinion  of  the  court  was  delivered  by 

Bedle,  J.  Section  four  of  the  supplement  to  the  bastardy 
act  {Nix.  Dig.  72,)  provides  that  the  jury  "shall,  by  their 
verdict,  declare  and  find  whether  or  not  the  said  jDerson  ac- 
■cused  be  the  father  of  such  bastard  child."  The  actual  find- 
ing was  "guilty"  but  the  justices  made  the  record  of  it  in 
these  words :  "  That  the  defendant,  Sheppard  Gaskill,  was 
■guilty,  and  the  putative  father  of  the  said  bastard  child."  It 
is  claimed  that  such  a  record  was  not  justified  by  the  finding, 
and  that  the  issue  should  have  been  found  in  the  words  of  the 
statute.  The  only  issue  for  the  jury  to  decide  was  whether  he 
was  the  father  of  the  bastard  child  or  not.  This  is  the  plain 
limitation  of  the  act.  The  proceedings  are  treated  by  its  pro- 
visions as  an  accusation  that  he  is  such  father,  and  when  the 
jury  is  impaneled  and  sworn,  the  language  of  section  four 
is,  that  "  the  said  accusation  shall  thereupon  be  tried,  as  in 
•«ases  in  courts  of  common  law,  before  such  jury."  The  legal 
effect  of  the  whole  record  in  this  case  is,  that  Gaskill  was  so 
accused.  The  verdict  of  guilty  could  mean  nothing  else  than 
that  he  was  guilty  of  the  accusation ;  or,  in  other  words,  that 
be  was  the  father  of  the  child.  The  justices,  therefore,  were 
justified  in  making  the  entry  in  form,  according  to  the  neces- 
sary meaning  of  the  finding.  Middleton  v.  Quigley,  7  Halst, 
352. 

The  remaining  reason  urged  against  the  order  is,  that  no 
testimony  was  given  at  the  trial  that  the  overseer  of  the  poor, 
or  the  inhabitants  of  the  township,  had  expended,  or  entered 
into  any  contract  to  expend,  anything  for  or  towards  the 
maintenance  of  the  child  or  its  mother,  and  that  no  testimony 
■was  given  that  the  mother  and  child,  or  either  of  them,  had 
■ever  been  supported  by  the  township  as  paupers. 

This  order  does  not  include  any  lying-in  expenses.  It 
only  charges  the  father  and  mother  each  with  a  weekly  sum. 


358         NEW  JERSEY  SUPREME  COURT. 

Gaskill  V.  Overseer  of  Poor  of  Downe. 

The  order  in  the  usual  form  determines  that  the  child  is 
chargeable  to  the  township,  and  the  proposition  is,  that  for 
the  want  of  the  evidence  stated,  the  court  is  to  conclude  that 
the  child  was  not  so  chargeable.  It  is  not  necessary  that  the 
mother  and  child  should  be  adjudged  paupers  before  an  order 
of  bastardy  can  be  made.  Garwood  v.  Waterford,  3  Dutcher 
437.  But  the  insistment  is,  that  the  reason  stated  brings  tlie 
case  within  an  anonymous  case  in  Pennington  870.  A  cursory 
reading  of  that  case,  creates  the  impression  that  some  pay- 
ment or  actually  incurred  liability' on  tiie  part  of  the  town- 
ship, for  the  sup{)ort  of  the  mother  or  child,  is  necessary. 
Yet  upon  careful  examination,  it  is  clear  that  the  whole  facts 
satisfied  the  court  that  the  child  was  being  kept  by  the  mother, 
and  that  both  were  supported  by  her  father,  and  that  no  ap- 
plication had  been  made  to  the  overseers  for  the  support  of 
the  child.  The  note  to  the  case  also  states  that  the  father  of 
the  woman  had  recovered  a  large  sum  of  the  putative  father 
for  the  Seduction,  and  was  above  making  application  for  the 
support  of  the  child.  That  case,  then,  goes  only  to  the  effect 
that  the  order  of  bastardy  cannot  be  made  where  there  is  no 
application  to  the  overseer  for  relief,  and  the  child  is  being 
otherwise  supported.  This,  of  course,  has  no  reference  to 
preliminary  proceedings  to  secure  the  township.  The  absence 
of  evidence  of  payment  or  agreement  to  pay,  for  the  support 
of  the  mother  or  child,  is  not  sufficient  for  this  court  to  con- 
clude that  the  child  was  not  chargeable  to  the  township,  and 
contrary  to  what  appears  on  the  face  of  the  order. 

The  order  must  be  affirmed,  with  costs. 


NOVEMBER  TERM,  1873.  359 


Sdllwell  V.  Tomlinson. 


STILLWELL  v.  TOMLINSON. 

1.  Where,  in  a  suit  against  the  heirs  for  a  debt  of  the  ancestor,  under  the 
statute,  {Nix.  Dig.  380)  the  writ  was  served  upon  one  of  the  defend- 
ants, and  as  to  the  others,  an  order  was  taken  for  them  to  appear,  &c., 
and  that  it  be  served  and  published  as  provided  by  the  supplement  of 
March  3d,  1853 — Held,  that  the  declaration  should  be  against  all  the 
defendants,  and  filed  within  thirty  days  from  the  return  of  the  writ 
if  any  defendant  has  been  summoned. 

2.  What  the  efTect  of  the  declaration,  after  filed,  in  case  all  the  defend- 
ants are  not  brought  before  the  court?     Query. 

3.  In  case  of  judgment  by  default  against  absent  defendants,  published, 
the  entry  of  judgment  should  show  they  were  brought  into  court. 


In  case.     On  motion  to  non-pros. 

Argued   at   June   Term,    1873,   before    Justices    Bedle,. 
WooDHULL  and  Scudder. 

For  the  defendants,  P.  L.   Voorhees. 

For  the  plaintiff,  F.  F.  Westcott. 

The  opinion  of  the  court  was  delivered  by 

Bedle,  J.  This  suit  was  brought  against  the  heirs  for  a 
debt  of  ancestor,  under  the  statute.  Nix.  Dig.  380.*  The 
writ  was  made  returnable  March  20th,  1873.  It  was  served 
upon  one  of  the  defendants,  and  as  to  the  others,  an  order  was 
taken  for  them  to  appear  on  or  before  May  31st,  1873;  also 
that  it  be  served  or  published  as  provided  in  section  one,  of 
the  supplement  of  March  3d,  1853.  Nix.  Dig.  380.  The 
declaration  was  filed  May  31st,  and  a  motion  is  now  made  to 
non-pros,  for  not  having  filed  it  within  thirty  days  from  the 
return  day  of  the  summons,  one  of  the  defendants  having 
been  returned  summoned.  The  question  was  to  be  settled 
entirely  upon  the  construction  of  section  two  of  the  supple- 
ment referred  to.  That  section  contemplates  the  filing  of  the 
declaration  before  the  time  limited  for  appearance  has  ex- 
pired; for  if  no  appearance,  judgment  by  default  may  be 
immediately  entered,  at  the  expiration  of  the  time,  "  provided 

Rev.,  p.  476. 


560  NEW  JERSEY  SUPREME  COURT. 

Slillwell  V.  Tonjlinson. 

a  declaration  shall  have  been  duly  filed ;"  and  if  an  appear- 
ance is  entered,  although  it  may  have  been  on  the  last  day, 
the  absent  defendants  must  plead  thereto  within  thirty  days 
from  the  expiration  of  the  time  limited  by  the  rule,  "the 
plaintiff  having  filed  a  declaration."  Although  the  section  is 
not  free  from  difficulty,  it  seems  to  have  been  assumed  that 
the  declaration  would  be  filed  before  the  time  for  appearance 
has  elapsed-.  It  is  entirely  practicable  to  so  construe  tlie  act, 
and  by  holding  that  the  declaration  should  be  filed  within 
thirty  days  from  the  return  of  the  writ,  if  any  defendant  is 
summoned,  it  gives  such  defendant  a  speedy  and  fair  oppo- 
tunity  to  be  informed  of  the  merits  of  the  demand.  The 
•declaration  should  be  against  all  of  the  defendants,  and  filed 
within  thirty  days  from  the  return  of  the  writ,  if  any  de- 
fendant has  been  summoned.  What  may  be  the  effect  of 
it,  after  filed,  in  case  all  the  defendants  are  not  brought 
before  the  court,  need  not  now  be  raised.  The  declaration 
was  filed  out  of  time,  as  against  the  defendant  served,  but 
tlie  motion  to  non-pros  is  denied  on  account  of  the  uncer- 
tainty of  the  question.  A  rule,  upon  him,  will  be  neces- 
sary in  order  to  compel  him  to  plead.  As  to  the  other 
defendants,  I  do  not  see  how  they  can  complain  of  any  fail- 
ure to  file  the  declaration  before  May  31st. 

Each  party  must  pay  his  own  costs. 

N.  B.  In  a  case  of  judgment  by  default  against  absent 
defendants,  published,  the  entry  of  judgment  should  show 
how  they  were  brought  into  court. 


NOVEMBER  TERM,  1873.  3W 


Delaware,  Lackawanna  and  Western  K.  K.  Co.  v.  Ditton. 


THE    DELAWAEE,    LACKAWANNA    AND    WESTEKN    EAIL- 
EOAD  COMPANY  v.  CHAELES  DITTON. 

The  act  of  April  15th,  1846,  entitled  "An  act  for  the  relief  of  creditors 
against  corporations,"  (Nix.  Dig.  172,)  and  the  supplement  thereto  of 
March  22d,  1865,  {Nix,  Dig.  173,)  refer  only  to  the  mode  of  serving 
process  in  the  higher  courts,  and  not  when  issued  by  a  justice  of  the 
peace. 


On  certiorari. 

Argued  at  June  Term,  1873,  before  Justices  Bedle,  "Wooiv- 

HULL  and  SCUDDER. 

For  the  plaintiffs  in  certiorai^i,  J.  Vanatta. 
For  the  defendant,  J5.  C.  Frost. 

TJie  opinion  of  the  court  was  delivered  by 

Bedle,  J.  The  proceedings  brought  here  by  the  writ  are 
by  scire  facias  before  a  justice  of  the  peace,  in  favor  of  Ditton, 
against  the  railroad  company.  They  are  based  upon  an  at- 
tachment issued  by  the  justice  against  one  Edward  Richart, 
and  money,  or  a  debt,  in  the  hands  of  the  company,  was 
undertaken  to  be  attached.  The  scii^e  facias  was  served  ac- 
cording to  the  following  return  of  the  constable :  "  Served 
the  within  summons  on  the  Delaware,  Lackawanna  .and 
Western  Railroad  Company,  by  serving  the  same  on  George 
E.  Meeker,  the  said  company's  agent  at  Phillipsburg,  by  in- 
forming him  of  the  contents  thereof,  and  giving  him  the 
justice's  copy."  The  claim  for  which  the  attachment  was 
issued  is  less  than  ^100,  and  the  amount  attached  was  $40'. 
The  plaintiff  need  not  bring  his  suit  by  attachment  before  a 
justice  of  the  peace,  in  order  to  recover  costs.  Hanness  v. 
Smith,  1  Zah.  496.  If  he  does,  and  it  becomes  necessary  to 
proceed  against  the  garnishee  by  attachment,  he  can  only  do 
it  when  the  writ  of  scire  facias  can  be  served  in  the  same 
manner  as  provided  in  the  justices'  court  act  for  the  service 


^62  NE^y  JERSEY  SUPREME  COURT. 

Delaware,  Lackawanna  and  Western  R.  R.  Co.  v.  Ditton. 

of  a  summons.  The  writ  of  scire  facias,  referred  to  in  section 
fifty-one  of  the  attachment  act,  must  necessarily  be  regarded, 
as  it  often  is  under  tlie  common  law  practice,  in  the  nature  of 
a  summons,  and  as  the  commencement  of  an  action.  Winter 
V.  Kretchman,  2  T.  E.  45 ;  Fenner  v.  Evans,  1  T,  R.  267. 
There  is  no  provision  in  the  justices'  court  act  for  the  service 
of  a  summons  upon  a  corporation,  but  in  section  seventy -six. 
Nix.  Dig.  470.*  If  this  company  can  be  considered  as  a 
corporation  within  that  section,  of  which  no  opinion  is  in- 
tended, the  summons  could  only  be  served  upon  the  president, 
cashier  or  clerk  of  the  corporation,  if  found,  and  if  not  found, 
on  any  of  the  directors  or  managers  of  the  said  corporation. 
The  service  was  evidently  not  made  under  that  section,  but 
under  the  supplement  of  March  22d,  1865,  {Nix.  Dig.  173,)t 
to  an  act  for  the  relief  of  creditors  against  corporations,  ap- 
proved April  15th,  1846,  [Nix.  Dig.  172,)  treating  the  com- 
pany as  a  foreign  corporation.  Both  the  act  of  1846  and  the 
supplement  of  1865  refer  to  the  mode  of  serving  process  in 
tiie  higher  courts,  and  not  when  issued  by  justices  of  the 
peace.  This  is  clear  from  the  scope  and  nature  of  the  provi- 
sions of  those  acts.  The  service  was  upon  Meeker,  an  agent ; 
whether  a  director  or  conductor,  or  what  kind  of  an  agent,  it 
does  not  appear.  The  service  could  only  be  under  section 
seventy-six  of  the  small  cause  act.  And  if  it  cculd  not  be 
made,  under  that  act,  the  proceedings  before  the  justice,  both 
in  the  attachment  and  the  writ  of  scire  facias,  must  be  ineffec- 
tive to  reach  the  garnishee.  The  other  question  raised  need 
not  be  considered.  The  writ  of  scire  facias,  and  the  subse- 
quent proceedings  brought  up  by  this  certiorai'i,  must  be  set 
aside. 

*Reo.,  p.  539,  I  7.    \Rev.,  p.  193,  ^  88. 

Cited  in  Mayor,  &c.,  of  Jersey  City  v.  Hutlon,  9  Vr,  88 ;    Tovmaend  v. 
School  Trustees,  12  Vr.  312. 


NOVEMBER  TERM,  1873.  363 


State,  Herder,  Collector  of  Amwell,  v.  Collector  of  Hunterdon. 


THE  STATE,  EX  REL.  JACOB  S.  HERDER,  COLLECTOR  OF 
TAXES  OF  EAST  AMWELL  TOWNSHIP,  HUNTERDON 
COUNTY,  V.  COUNTY  COLLECTOR  OF  HUNTERDON 
COUNTY. 

THE  STATE,  EX  REL.  JOHN  S.  BUSH,  COLLECTOR  OF  TAXES 
OF  DELAWARE  TOWNSHIP,  HUNTERDON  COUNTY,  v. 
COUNTY  COLLECTOR  OF  HUNTERDON  COUNTY. 

1.  A  county  collector  is  not  required  or  permitted  by  the  "  act  to  estab- 
lish a  system  of  public  instruction,"  {Nix.  Dig.  878,  §  75,)*  to  exercise 
any  discretion  as  to  how  much  of  the  state  appropriation  the  several 
township  collectors  in  the  county  are  entitled  to  receive  from  him. 
That  question  as  between  these  officers,  is  settled  conclusively  by  the 
order  of  the  county  superintendent  of  public  schools. 

2.  The  notion  that  a  county  collector  can,  in  any  case,  lawfully  reduce 
the  amount  by  setting  up  some  counter  claim,  whether  in  his  own 
behalf  or  in  behalf  of  his  county,  and  whether  against  the  township 
collector,  personally,  or  against  his  township,  is  neither  justified  by  the 
language  nor  consistent  with  tlie  policy  of  our  school  laws. 


Application  for  mandamus. 

Argued  at  June  Term,  1873,  before  Justices  Scudder  and 

WOODHULL. 

For  the  relators,  ..4.  V.  Van  Fleet. 
For  the  defendants,  G.  A.  Allen. 

The  opinion  of  the  court  was  delivered  by 

WooDHULL,  J.  This  is  an  application  for  a  writ  of  man~ 
damns,  to  be  directed  to  the  collector  of  the  county  of  Hun- 
terdon, commanding  him  to  pay  to  the  collector  of  the  town- 
ship of  East  Amwell,  in  that  county,  the  amount  remaining 
due  on  the  following  order : 

"  To  the  Collector  of  Hunterdon  County — Pay  to  the  order 

-of  the  collector  of  East  Amwell  township,  $1519.44,  being 

*Bev.,p.lOS4,  I  83. 


364  NEW  JERSEY  SUPREME  COURT. 

State,  Herder,  Collector  of  Amwell,  v.  Collector  of  Hunterdon. 

the  amount  apportioned  out  of  the  state  scliool  tax  for  the 
support  of  public  schools  in  said  county,  for  the  year  1871. 

"Cornelius  S.  Conkling, 
"$1519.44.  County  Superintendent." 

By  the  school  law  of  April  6th,  1871,  supplemental  to  that 
of  March  21st,  1867,  provision  is  made  for  the  assessment  of 
a  state  school  tax  of  two  mills  on  each  dollar  of  the  valuation 
contained  in  the  last  abstract  of  ratables  from  the  several 
counties.     This  is  the  school  tax  referred  to  in  the  order. 

The  whole  amount  of  the  two  mills  tax  apportioned  by  the 
state  superintendent  of  public  instruction  to  the  county  of 
Hunterdon  was  $45,577.05,  which  was  duly  paid  over  to  the 
collector  of  that  county.  This  sum  was  afterwards  appor- 
tioned by  the  county  superintendent  among  the  several  town- 
ships and  boroughs  of  the  said  county.  The  apportionment 
to  East  Amwell  township  being  the  precise  amount  for  which 
the  above  order  is  drawn. 

The  relator  having  received  the  order  from  the  county 
su2)eriutendent  presented  it,  a  few  days  afterwards,  to  Mr. 
Dunham,  the  cashier  of  the  Hunterdon  County  Bank,  and  re- 
ceived thereon  from  him,  as  the  agent  of  the  county  collector, 
the  sum  of  $1327.43,  a  sum  less  by  $192.01  than  the  amount 
called  for  by  the  order.  This  balance  of  $192.01,  the  agent, 
and  subsequently  the  county  collector  himself,  refused  to  pay, 
and  it  still  remains  unpaid. 

The  only  reason  given  by  the  county  collector  for  his  re- 
fusal to  pay  the  order  in  full,  and  the  only  ground  upon 
which  he  now  attempts  to  justify  it  is,  that  the  township  of 
East  Amwell  failed  to  raise  its  proper  proportion  of  the  school 
tax  for  the  year  1871,  and  that  the  balance  withheld  is  the 
exact  amount  required  to  make  good  the  deficiency. 

The  answer  to  this  on  the  part  of  the  relator  is  two  fold : 
1.  That  there  was,  in  fact,  no  failure,  &c.,  as  alleged  by  the 
defendant,  and  2.  That  even  if  there  was,  such  failure  and 
the  resulting  deficiency  can  furnish  no  legal  excuse  for  the 
defendant's  refusal  to  pay  the  full  amount  of  the  order. 


NOVEMBER  TERM,  1873.  365 

State,  Herder,  Collector  of  Amwell,  v.  Collector  of  Hunterdon. 

The  last  proposition  was  the  one  chiefly  urged  in  support 
of  the  present  application,  and  its  correctness,  cannot,  I  think, 
be  successfully  controverted. 

The  75th  section  of  the  act  to  establish  a  system  of  public 
instruction,  approved  March  21st,  1867,  provides  that  the 
county  collector  of  each  county  shall  receive  and  hold  in  trust 
that  part  of  the  state  appropriation  belonging  to  his  county, 
and  shall  pay  out  the  same  to  the  collectors  of  the  several 
towns  and  to  the  city  treasurers  of  the  cities  of  his  county, 
only  on  the  orders  of  the  county  superintendent.  Nix.  Dig, 
878,  879,  §  75.* 

By  the  fifth  section  of  the  act  of  April  6th,  1871,  supple- 
mental to  that  of  1867,  it  is  made  the  duty  of  the  county 
superintendent  of  each  county  to  apportion  the  state  school 
money  to  the  several  townships  of  his  county,  and  to  the 
towns  and  cities  therein,  not  included  in  said  townships,  and 
also  to  the  several  school  districts ;  and  the  same  section  pro- 
vides further,  that  it  shall  be  the  duty  of  the  county  superin- 
tendent, on  or  before  the  10th  day  of  February  of  each  year, 
to  draw  orders  on  the  county  collector,  and  in  favor  of  the 
township  collectors  and  city  treasurers  of  his  county,  for  the 
payment  of  said  moneys  so  apportioned,  and  that  said  collec- 
tors and  treasurers  shall  apply  for  and  be  entitled  to  receive 
the  same  as  soon  as  such  orders  are  received. 

The  duty  and  the  authority  of  the  township  collector,  witb 
respect  to  the  school  moneys  apportioned  to  his  township,  a& 
well  as  the  duty  of  the  county  collector,  with  respect  to  the 
amount  thus  apportioned,  are  so  plainly  marked  out  in  the 
acts  referred  to,  and  especially  in  the  closing  sentence  of  the 
section  last  cited,  as  to  leave  little  room  for  misunderstanding. 

In  the  first  place,  it  is  made  the  duty  of  the  township  col- 
lector, as  soon  as  he  receives  the  county  superintendent's  order, 
to  apply  to  the  county  collector,  on  whom  it  is  drawn,  for  pay- 
ment of  the  money  apportioned  to  his  township.  In  the  next 
place,  what  he  is  thus  bound  to  apply  for  to  the  county  col- 
lector— that  is  the  money  apportioned  to  his  township — he  it? 

*Rev.,  p.  1084,  §  83. 

Vol.  VII.  23 


366  NEW  JERSEY  SUPREME  COURT. 

State,  Herder,  Collector  of  Amwell,  v.  Collector  of  Hunterdon. 

expressly  declared  to  be  entitled  to  receive,  and  precisely  that 
amount  the  county  collector  must,  of  necessity,  be  bound  to 
pay. 

The  law  leaves  him  no  alternative.  It  neither  requires  nor 
permits  him  to  exercise  any  discretion  as  to  how  much  the 
township  collector  is  entitled  to  receive  from  him.  That 
question,  as  between  these  officers,  is  settled  conclusively  by 
the  county  superintendent's  order.  This  alone  measures  the 
right  of  the  one  to  receive,  and  the  duty  of  the  other  to  pay. 

If  good  at  all,  the  order  must  be  good  for  the  full  amount 
for  which  it  is  drawn. 

The  notion  that  a  county  collector  can,  in  any  case,  lawfully 
reduce  the  amount,  by  setting  up  some  counter  claims,  whether 
in  his  own  behalf,  or  in  behalf  of  his  county,  and  whether 
against  the  township  collector  personally,  or  against  his  town- 
ship, is  neither  justified  by  the  language,  nor  consistent  with 
Jthe  policy  of  our  school  laws. 

It  is,  of  course,  a'  primary  object  of  these  laws,  to  provide 
^or  the  safe  and  prompt  transmission  of  the  public  school 
>inoney  from  the  treasury  of  the  state,  and  for  its  speedy  and 
iproper  distribution  amongst  those  who  are  entitled  to  its 
ibenefits. 

To  secure  these  results,  two  classes  of  officers  are  employed. 
Tirst,  the  treasurer  of  the  state,  and  the  several  county  and 
township  collectors,  each  of  whom  is  for  a  time  entrusted  with 
the  actual  custody  of  the  fund  in  question,  or  of  some  portion 
-of  it;  and  secondly,  the  state  superintendent,  the  comptroller, 
the  county  superintendents  and  the  district  clerks,  who  are  to 
apportion  and  direct  the  payment  of  it. 

The  power  which  the  several  officers  of  the  first  class  are 
permitted  to  exercise  over  the  school  money  in  their  hands, 
is,  in  degree  and  kind,  substantially  the  same. 

So  that  if  a  county  collector  may  lawfully  determine  for 
himself,  whether  or  not  he  will  pay  a  county  superintendent's 
order,  the  state  treasurer  may,  at  his  discretion,  decline  to 
honor  the  comptroller's  warrant,  and  a  township  collector 
<may  in  his  turn  repudiate  the  orders  of  the  district  clerks. 

It  cannot  be  doubted  that  the  exercise  of  such  power  by 


NOVEMBER  TERM,  1873.  367 

State,  Sharp,  Pros.,  v.  Casper,  Collector. 

these  officers,  or  any  one  of  them,  instead  of  furthering,  would 
necessarily  tend  to  obstruct  and  hinder  the  transmission  and 
proper  distribution  of  the  public  school  moneys,  and  would 
be  sure  to  introduce  utter  confusion  in  the  administration  of 
this  cherished  fund. 

My  conclusion  is,  that  the  township  collector  of  East 
Amwell  bad  a  right  to  receive  the  full  amount  of  the  order 
in  question,  and  that  it  was  the  duty  of  the  county  collector 
to  pay  to  him  that  amount,  and  nothing  less. 

The  collector's  duty  being  purely  ministerial,  and  there 
being  no  other  remedy,  the  relator  is  clearly  entitled  to 
a  mandamus  ;  and  as  there  is  no  dispute  about  any  material 
fact,  and  the  duty  to  be  perfbrmed  was  of  a  public  nature, 
and  of  so  me  .importance,  the  case  falls  within  the  decision  of 
this  court  in  State,'ex  rel.  Love  et  at.,  v.  Freeholders  of  Hudson 
County,  6  Vroom  269,  and  the  writ  should  be  peremptory, 
in  the  first  instance. 

Cited  in  Board  of  Education  v.  Sheridan  13  Vr.  64. 


THE  STATE,  JACOB   T.  SHARP,  PROSECUTOR,  v.   CHARLES 
W.  CASPER,  COLLECTOR. 

The  residence  required  by  the  tax  law  of  1866,  {Nix.  Dig.  951,)  to  make 
one  liable  to  a  personal  tax  in  a  particular  township  or  ward,  is  pre- 
cisely the  same  in  kind  as  that  which  will  entitle  him  to  vote  there. 


On  certioran.     In  matter  of  taxation. 

Argued  at  June  Term,  1873,  before  Justices  Bedle,  Scud- 
deb  and  WOODHULL. 

For  the  prosecutor,  A.  H.  Slape  and  F.  F.  Westcott. 

For  the  defendant,  M.  P.  Grey. 


368  NEW  JERSEY  SUPREME  COURT. 

State,  Sharp,  Pros.,  v.  Casper,  Collector. 

The  opinion  of  the  court  was  delivered  by 

WooDHULL,  J.  The  prosecutor  having  been  assessed  for 
taxes  in  the  "West  ward  of  the  city  of  Salem,  for  the  year 
1871,  seeks  to  have  the  assessment  set  aside  for  several  rea- 
sons, the  first  and  principal  one  being  that  he  was  not,  at 
any  time  during  the  year  1871,  a  resident  of  the  city  of 
Salem,  and  did  not,  during  that  year,  own  any  real  estate 
there. 

A  very  large  proportion  of  the  tax  complained  of  was 
assessed  on  personal  property,  namely,  certain  bonds  sup- 
posed to  belong  to  the  prosecutor,  and  amounting  to  $50,000, 
which,  for  the  purposes  of  this  case,  may  be  assumed  to  be 
the  true  amount  of  his  taxable  personal  property. 

The  sixth  section  of  the  act,  approved  April  11th,  1866, 
provides  that  the  tax  on  personal  property  shall  be  assessed 
upon  each  inhabitant  liable  to  a  personal  tax,  in  the  town- 
ship or  ward  where  he  resides,  on  the  day  prescribed  by  law 
for  commencing  the  assessment  in  each  year. 

The  character  of  the  residence  here  intended,  is  fixed  by 
the  word  inhabitant.  The  meaning  of  this  word,  as  used  in 
the  act,  does  not  differ  materially,  if  at  all,  from  its  ordinary 
and  popular  signification. 

One  who  has  an  actual,  but  merely  temporary  residence  in  a 
place,  is  not,  in  any  proper  sense,  an  inhabitant  of  that  place. 

An  inhabitant  of  a  township  or  ward  is  one  who  has  his 
domicile  there,  his  fixed  habitation  and  home,  from  which  he 
has  no  present  intention  of  removing.  State  v.  Ross,  3  Zab. 
617;  Story  on  Const.  Lmo,  §§  41,  43. 

The  residence,  then,  required  by  the  act  to  make  one  liable 
to  a  personal  tax  in  a  particular  township  or  ward,  is  pre- 
cisely the  same  in  kind  as  that  which  will  entitle  him  to  vote 
there.     Cadwalader  v.  Howell  et  al.,  3  Harr.  138. 

From  the  evidence  submitted  to  the  court  in  this  case,  I 
am  satisfied  that  Dr.  Sharp,  the  prosecutor,  had  no  such  resi- 
dence in  the  city  of  Salem  at  any  time  during  the  year  1871. 

The  only  evidence  which  seems  at  all  opposed  to  this 
conclusion,  is  a  letter  addressed,  late  in  the  summer  of  1871,. 


NOVEMBER  TERM,  1873.  369 


State,  Sharp,  Pros.,  v.  Casper,  Collector. 

by  the  prosecutor,  to  Mr.  Rusling,  since  deceased,  at  that  time 
the  assessor  of  the  said  West  ward,  in  Salem.  This  letter,  it 
is  urged  on  the  part  of  the  defendant,  amounts  to  a  conclusive 
admission  by  the  prosecutor,  that  with  his  own  knowledge  and 
consent,  he  had  been,  in  fact,  assessed  for  the  year  1871,  as  a 
resident  of  that  ward.  It  must  be  admitted,  that  there  are 
some  expressions  in  the  letter  which,  unexplained,  would  go 
far  to  justify  the  inferences  drawn  from  them  by  the  defend- 
ant's counsel. 

Writing  under  date  of  August  25th,  the  i)rosecutor  says  to 
Mr.  Rusling :  "  I  gave  you  some  bonds  to  be  assessed,  when 
I  saw  you  in  Salem,"  &c. ;  and  again :  *'  Can  you  not  be  so 
kind  as  to  cross  oif  my  name  as  to  bonds,  and  oblige  yours,"  &c. 

It  cannot  be  wondered  at,  that  from  such  language  as  this 
there  should  be  drawn  very  strong  inferences  against  the 
present  insistment  of  the  prosecutor.  And  yet,  to  my  mind, 
his  explanation  of  these  apparently  damaging  expressions,  is 
full  and  entirely  satisfactory.  He  states,  that  in  the  spring 
or  early  summer  of  1871,  while  on  a  visit  to  his  son,  a  prac- 
tising physician  in  the  city  of  Salem,  he  was  strongly  urged 
by  him  to  change  his  residence  from  Cumberland  to  Salem, 
and  that  he  had  serious  thoughts  of  doing  so,  and,  in  fact, 
had  almost  made  up  his  mind  to  do  it ;  that  being  in  this 
frame  of  mind,  and  engaged  in  conversation  with  his  son 
upon  this  very  subject  of  a  change  of  residence,  Mr.  Rusling, 
happening  to  be  near,  was  called  by  his  son  to  join  them, 
and  was  informed  by  him,  that  his  father,  the  prosecutor, 
was  about  to  change  his  residence  to  the  city  of  Salem,  and 
if  he  did  so,  should  be  assessed  there  for  his  personal  prop- 
erty ;  that  although  he,  the  prosecutor,  did,  in  the  course  of 
that  interview,  give  in  certain  bonds  to  Mr.  Rusling,  he  did  it 
with  no  purpose  or  expectation  that  he  would  be  assessed  for 
them  in  Salem,  unless  the  change  of  residence,  which  he  had 
been  thinking  of,  should  be  carried  into  effect;  and  that  his 
plan  of  moving  to  Salem  from  Cumberland,  was  never  con- 
summated.    The  statements  of  the  prosecutor  are  corrobo- 


370  NEW  JERSEY  SUPREME  COURT. 

Leonard  v.  Stout. 

rated  in  all  material  points  by  the  testimony  of  his  son,  Dr, 
Edward  S.  Sharp ;  and  they  satisfy  me,  beyond  a  doubt,  that 
the  prosecutor  was  not  liable  to  a  personal  tax  in  the  city  of 
Salera,  for  the  year  1871. 

I  infer,  also,  from  the  testimony,  that  the  prosecutor  did  not, 
during  that  year,  own  any  real  estate  in  the  city  of  Salem. 
The  assessment  must,  therefore,  be  set  aside. 

Beversed  June  Term,  1874 — Court  of  Errors. 


AMASA  LEONARD  v.  JEROME  L.  STOUT. 

1.  The  first  process  in  personal  actions  in  any  of  the  courts  of  law  of 
this  state,  is  a  summons  or  capias.  The  writ  of  attachment  is  an  ex- 
ceptional and  extraordinary  remedy  given  by  the  statute. 

2.  The  practical  test,  in  case  of  foreign  attachment,  is  whether  a  legal 
service  of  a  summons  can  be  made  on  the  debtor,  at  his  dwelling- 
house  or  usual  place  of  abode,  in  this  state.  If  it  can,  the  extraordi- 
nary writ  of  attachment  cannot  be  used.  * 

3.  To  constitute  a  residence  in  the  state,  within  the  attachment  act,  it 
must  be  the  debtor's  home  where  he  then  is,  or  to  which,  if  he  be 
absent,  he  has  the  intention  of  returning,  and  where,  in  his  absence, 
he  is  represented  by  some  member  of  his  family,  or  some  one  who  can 
answer  for  him  and  communicate  with  him. 

4.  In  this  case  the  debtor  had  two  places  of  abode— one  in  New  York  and 
one  in  New  Jersey.  The  decisive  points  here  are,  that  he  votes  in 
this  state,  and  refused  to  vote  in  New  York  ;  has  often  expressed  his 
intention  to  reside  here ;  that  when  the  attachment  issued,  persons 
regarded  by  him  as  members  of  liis  family  were  living  at  his  home  in 
Morris  county ;  that  this  house  was  kept  open,  and  often  visited  by  him 
and  his  wife  while  they  were  living  in  New  York,  through  the  winter. 


The  certiorari  in  this  case  to  the  Morris  Circuit  Court,  re- 
views an  order  of  that  court,  made  March  10th,  1873,  in  a 
suit  of  foreign  attachment,  brought  by  Jerome  L.  Stout  against 
Amasa  Leonard,  refusing  to  quash  the  writ  and  supersede  the 
attachment. 


NOVEMBER  TERM,  1873.  371 

Leonard  v.  Stout. 

The  writ  was  issued  February  13th,  1872,  and  a  farm  and 
other  property  of  the  defendant,  Leonard,  were  taken  in  said 
county. 

The  facts  upon  which  the  motion  to  quash  was  based,  ap- 
pear in  the  opinion  of  the  court. 

Argued  at  June  Term,  1873,  before  Justices  Woodhull, 
and  ScuDDER. 

For  the  plaintiff  in  certiorari,  A.  Mills  and  C.  Parker. 

For  the  defendant,  H.  C.  Pitney. 

The  opinion  of  the  court  was  delivered  by* 

ScuDDER,  J.  Our  practice  act,  section  seventeen,  defines 
what  shall  be  the  first  process  in  personal  actions  in  any  of 
the  courts  of  law  of  this  state.  A  summons,  or  a  capias  ad 
respondendum,  begins  the  action  in  our  common  law  courts. 
The  writ  of  attachment  is  an  exceptional  and  extraordinary 
remedy,  whereby  the  property  of  the  defendant  is  first  seized,, 
and  afterwards  publication  of  notice  made  that  he  may  appear 
and  plead  to  the  action.  It  is  provided  under  our  statute  in 
two  cases — either  where  the  debtor  absconds  from  his  creditors 
and  is  not  resident  in  the  state  at  the  time,  or  where  the 
debtor  resides  out  of  the  state  and  has  property  in  the  same. 

In  the  former  case,  absence  by  absconding  or  concealment 
has  been  held  to  be  the  meaning  of  the  term  not  resident. 

In  the  latter,  the  word  "  residence  "  has  the  signification  of 
a  dwelling-house,  or  usual  place  of  abode. 

The  practical  test  in  the  latter  case,  with  which  we  are  now 
concerned,  is  whether  a  legal  service  of  a  summons  can  be 
made  on  the  debtor  at  his  dwelling-house,  or  usual  place  of 
abode,  in  this  state.  If  it  can,  the  extraordinary  writ  of  at- 
tachment cannot  be  used — the  defendant  must  be  sued  by 
summons,  or  capias.  If  it  cannot,  then  the  defendant's  prop- 
erty may  be  attached. 

By  the  ordinary  rule  of  construction,  this  procedure  should 
be  contested  by  the  courts  with  strictness, -as  it  is  a  departure 


372  NEW  JERSEY  SUPREME  COURT. 

Leonard  v.  Stout. 

from  the  usual  cominou  law  methods ;  but  by  section  60,  of 
the  statute,  the  act  must  be  construed  in  all  courts  of  judica- 
ture, in  the  most  liberal  manner,  for  the  detection  of  fraud, 
the  advancement  of  justice,  and  the  benefit  of  creditors.  In 
this  spirit  of  liberality  it  has  always  been  construed  in  our 
courts,  and  every  proper  concession  has  been  made  in  favor 
of  the  jurisdiction  assumed  under  the  writ.  But  this  does 
not  mean  that  the  express  words  by  the  statute  will  be  disre- 
garded or  misinterpreted  for  the  vexation  of  a  debtor,  who  is 
amenable  to  the  ordinary  process  of  the  courts.  We  must 
still  construe  the  statute  as  it  reads,  and  according  to  its  spirit 
and  intent. 

In  a  recent  case  {Perrine  v.  Evans,  6  Vroom  221,)  it  has 
bee«  decided  iuethis  court  that  mere  presence  in  the  state  is 
not  residence.  Neither  will  it  be  held  that  mere  absence  is 
non-residence,  within  the  terms  of  the  statute.  As  is  stated 
in  the  case  above  cited,  the  description  in  the  statute  of  "  debt- 
ors who  reside  out  of  the  state,"  means  debtors  who  have  not 
an  abode  in  this  state;  or  we  may  render  it  in  other  words, 
by  referring  to  our  practice  act  as  meaning  debtors  who  have 
no  dwelling-house  or  usual  place  of  abode  in  the  state  where 
the  process  of  summons  can  be  served.  It  is  not  enough  to 
prevent  the  use  of  the  writ  of  attachment,  that  a  personal  ser- 
vice by  capias  or  summons  may  be  made,  the  debtor  must  be 
in  such  position  that  a  summons  cannot  be  served  upon  him 
by  leaving  it  at  his  residence  or  usual  place  of  abode. 

Such  residence  need  not  be  strictly  the  domicil  where  a 
person  has  an  exclusive  and  only  actual  residence,  with  an 
intention  to  remain.  It  need  not  be  where  a  man  has  his 
birthright  or  his  citizenship,  for  he  may  well  have  the  rights 
and  duties  which  attach  to  a  domicil  in  one  place  and  a  resi- 
dence or  abode  in  another.  It  is  no  solecism  to  say  that  a 
man  has  two  homes.  He  may  have  one  in  the  city  and 
another  in  the  country.  He  may  have  one  in  one  state  and 
another  in  another  state.  He  may  reside  with  his  family 
part  of  the  year  in  one  dwelling-house,  and  part  of  the  year  in 
another  in  a  different  place,  and  when  absent  from  one  home, 


NOVEMBER  TERM,  1873.  373  . 

Leonard  v.  Stout. 

liavc  the  intention  to  return  to  it  again  as  an  abode.  To  con- 
stitute such  residence  within  our  statute,  it  must  be  either  an 
actual  present  dwelling-house,  or  an  usual  or  customary  place 
of  abode.  It  must  be  his  home  where  he  then  is,  or  to 
which,  if  he  be  absent,  he  has  the  intention  of  returning,  and 
where,  in  his  absence,  he  is  represented  by  some  member  of 
his  family,  or  some  one  who  can  answer  for  him  and  commu- 
nicate with  him.  If  he  be  absent,  and  have  no  such  repre- 
sentative, no  effective  service  of  a  summons  can  be  made.  He 
has  deprived  his  creditor  of  the  ordinary  legal  remedy,  and 
he  may  therefore  resort  to  the  extraordinary.  A  summons 
•cannot  be  served  where  a  dwelling  is  unoccupied.  It  cannot 
be  fastened  to  the  door.  Miller  v.  Doolittle,  2  South.  845. 
Wliat  has  been  said  is  intended  to  be  descriptive  of  the  term 
residence,  as  used  in  this  statute,  rather  than  an  attempt  at 
«xact  definition,  in  a  general  application,  of  the  term  domicil 
or  residence,  and  their  distinction. 

As  was  said  by  the  court  in  Abington  v.  North  Bridgewater, 
23  Pick.  176,  it  is  difficult  to  form  any  exact  definition.  As 
a,  question  of  fact,  it  sometimes  depends  on  minute  shades  of 
distinction,  which  can  hardly  be  defined.  It  must  often 
depend  upon  the  circumstances  of  each  case,  the  combinations 
of  which  are  infinite.  Yet  it  will  generally  be  found  in  prac- 
tice, that  there  is  some  one  or  a  few  decisive  circumstances 
which  will  determine  the  question. 

Let  us  now  look  as  briefly  as  possible  at  the  facts  of  this 
•case,  to  determine  whether,  on  February  13th,  1872,  when  this 
writ  of  attachment  was  issued,  the  defendant,  Amasa  Leonard, 
resided  out  of  this  state,  or  whether  he  had  a  dwelling-house, 
or  usual  place  of  abode  in  this  state,  where  service  of  a  sum- 
mons could  have  been  made  upon  him. 

He  was  actually  living,  at  that  time,  in  the  city  of  New  York, 
in  his  own  house,  with  his  wife,  son,  and  daughter.  His  busi- 
ness was  also  carried  on  by  him  in  that  city.  In  October, 
1864,  he  bought  a  farm  in  Mendham  township,  Morris  county. 
He  repaired  the  buildings,  furnished  the  house,  took  his 
family   there  in  November,  and  remained  with  them  there 


374  NEW  JERSEY  SUPREME  COURT. 

Leonard  v.  Stout. 

the  following  winter.  During  that  winter,  and  up  to  1867^ 
Leonard  appears  to  have  had  a  dwelling  in  New  York  and 
the  house  upon  his  farm,  which  were  occupied  at  different 
times  bj  his  family.  In  1867  he  broke  up  housekeeping  in 
New  York,  for  a  time.  In  April,  1869,  he  broke  up  house- 
keeping altogether  in  New  York,  living  only  in  Mendham, 
until  December  or  January  following,  when  he  rented  a  house 
again  in  New  York,  until  May,  when  he  returned  again  with 
his  family  to  Mendham.  He  remained  there  until  December, 
1870,  and  since  that  time  has  occupied  his  own  house  in  New 
York.     This  house  was  rented  from  May,  1869,  to  December, 

1870,  to  Mr.  Stephens.     From  December,  1870,  to  October, 

1871,  Mr.  Stephens  and  his  wife  boarded  with  Leonard.  In 
£)ecember,  1870,  some  furniture  was  taken  from  the  honse  in 
Mendham  to  the  house  in  New  York,  where  the  family  re- 
mained through  the  winter,  and  in  the  summer  of  1871  the 
family  were  again  on  the  farm  at  Mendham. 

From  May,  1869,  when  the  house  in  New  York  was  rented 
to  Mr.  Stephens,  up  to  the  time  of  issuing  the  writ  of  attach- 
ment, and  since,  the  house  at  Mendham  has  always  been  kept 
open,  and  some  one  or  more,  whom  the  defendant  calls  part 
of  his  family,  have  been  there.  On  February  13th,  1872,. 
when  the  writ  was  issued,  Leonard's  wife's  mother,  Mrs. 
White,  a  boy  named  Burnside,  who  was  a  connection  of  his- 
wife,  and  whom,  he  says,  he  had  adopted,  were  in  the  farm- 
house, and  continued  there  after  the  other  members  of  the 
defendant's  family  had  gone  to  New  York,  in  the  fall  previous. 
Besides  these,  David  M.  Kaggen  and  wife,  and  their  five 
children,  were  in  tiie  house.  They  had  been  there  during  the 
summer  previous,  while  Leonard's  family  -were  there.  Kaggen 
worked  the  farm,  and  had  general  charge  of  the  place  in 
Leonard's  absence,  and  his  wife  worked  in  the  house.  When 
the  family  were  all  there,  a  servant  or  two  came  from  the 
house  in  New  York  to  assist.  A  boy  named  Walter  Merri- 
field,  who  was  employed  by  Leonard  to  work  on  the  farm^ 
was  also  there. 


NOVEMBER  TERM,  1873.  375 

Leonard  v.  Stout. 

Leonard  paid  Kaggen  and  his  wife  wages,  furnished  provi- 
sions for  Mrs.  White,  Walter  and  young  Burnside  during  the 
winter  of  1871-2,  and  all  the  fuel  that  was  used  in  the  house. 
The  house  was  kept  open,  and  Leonard  and  his  wife  came  up 
occasionally  through  the  winter  and  passed  the  night  there. 
The  furniture,  except  that  which  was  used  by  Kaggen's 
family  in  their  own  rooms,  belonged  to  Mr.  Leonard. 

In  the  fall  of  1870,  Leonard  voted  at  the  election  in 
Mendham  township,  for  the  plaintiff  in  attachment,  Mr. 
Stout,  who  was  then  running  for  the  office  of  sheriff,  at  his 
request.  At  the  state  election  in  New  York,  in  November, 
1871,  Leonard  was  asked  to  vote,  and  refused  to  take  the 
ticket  that  was  offered  him,  saying,  openly,  that  he  was  a 
resident  of  New  Jersey.  He  swears,  that  since  1868  it  has 
been  his  intention  to  make  his  residence  in  New  Jersey.  He 
has  not  been  registered  as  a  voter  in  New  York  since  1868. 
He  had  a  box  in  the  post  office  at  Morristown,  where  he  re- 
ceived newspapers  and  letters.  He  had  a  pew  in  the  Metho- 
dist Episcopal  Church  at  Morristown.  He  had  a  lot  in  the 
cemetery  at  Morristown,  and  had  bought  a  lot  on  one  of  th& 
principal  streets  of  that  place,  for  the  purpose  of  building 
himself  a  house  there.  A  summons  had  also  been  served  by 
the  sheriff  of  Morris  county,  by  leaving  a  copy  at  his  house 
on  the  farm,  in  his  absence. 

Opposed  to  these  facts  which  go  to  show  Leonard's  resi- 
dence in  Morris  county,  it  is  urged  upon  the  evidence,  that 
his  house  in  New  York,  which  was  valuable  and  well  fur- 
nished, when  contrasted  with  the  small  house  in  the  country 
which  was  plainly  furnished,  and  overcrowded  when  the 
family  were  there,  shows  that  the  former  was  his  true  home^ 
and  the  latter  but  a  place  for  temporary  and  occasional  occu- 
pation. It  is  also  denied  that  his  wife's  mother  and  young 
Burnside  were  members  of  his  family. 

It  is  also  proved,  that  in  deeds  and  agreements  executed  by 
Leonard  for  several  months  prior  and  up  to  the  time  of  the 
attachment,  he  was  described  as  of  the  city  of  New  York. 
This  he,  however,  explains  by  saying,  that  as  a  business  man 


576         NEW  JERSEY  SUPREME  COUET. 

Leonard  v.  Stout. 

he  always  hailed  from  New  York.  And  there  are  other 
<leeds  and  papers  which  describe  him  as  of  the  State  of  New 
Jersey.  He  lias  always  been  taxed  as  a  resident  of  New 
York,  and  as  a  non-resident,  without  poll  tax,  in  New  Jer- 
sey. Bat  this  does  not  appear  to  have  been  done  in  either 
case  by  his  direction. 

An  attempt  was  made  to  serve  a  summons  upon  him, 
issued  out  of  the  justice's  court  in  the  winter  of  1871-2,  for 
trespass  done  by  his  cattle,  and  failing  to  find  him  at  the 
farm,  the  constable  returned  the  writ  without  service.  He 
also  told  the  attorney  about  that  time  that  it  could  not  be 
served  upon  him  there. 

Several  witnesses  testified  that  he  had  told  them  in  1870 
and  in  1871  that  he  resided  in  New  York  and  was  not  a  voter 
in  New  Jersey. 

Stout  and  others  say  that  after  he  voted  in  1870,  he  was 
asked,  at  Stout's  house,  ''  If  he  did  not  think  he  had  done 
wrong,"  to  which  he  replied  that  "  he  did  not  think,  he  had 
done  wrong ;  he  voted  to  correct  a  wrong."  Stout  says  this 
wrong  refers  to  an  illegal  vote  which  had  been  put  in  just 
before  his  against  Stout,  which  his  vote  for  Stout  balanced. 
Leonard  says  what  he  said  meant  that  his  vote  was  cast  to 
right  the  wrong  done  Stout  by  certain  calumnies  that  had 
been  spoken  of  him  during  the  canvass  when  he  was  a  can- 
didate for  sheriff. 

It  was  also  shown  that  he  had  never  voted  in  Morris 
county  except  in  the  fall  of  1870,  and  had  not  been  canvassed 
by  his  party  in  their  poll  list  as  a  voter. 

The  testimony  is  voluminous,  and  there  are  other  minor 
facts  and  circumstances  shown  to  prove  and  disprove  his 
residence  in  Mendham  township. 

While  there  is  conflict  in  this  testimony,  it  appears  to  me 
that  the  decisive  points  are  that  he  voted  in  Mendham  town- 
ship in  the  fall  of  1870,  without  challenge;  that  he  had  ex- 
pressed his  intention  before  that  time  to  make  his  residence 
at  his  mountain  home  in  New  Jersey ;  that  after  that  time  he 
refused  to   vote  in  New  York,  saying  he  had  changed  his 


NOVEMBER  TERM,  1873.  377 

Leonard  v.  Stout. 

voting  place;  and  that  after  April,  1869,  some  person  or  per- 
sons, regarded  by  him  as  part  of  his  family,  lived  in  this 
house  on  the  farm,  and  that  this  house  was  kept  open  and  often 
visited  by  him  and  his  wife  while  they  were  living  in  New 
York,  through  the  winter,  and  that  he  now  expressly  makes 
oath  that  it  has  been  his  intention,  since  1868,  to  have  hi& 
home  in  Morris  county.  Without  proof  of  some  decisive  act 
to  show  a  change  of  such  intention,  I  think  these  facts  are 
conclusive. 

These  bring  the  case  within  the  principle  found  in  Story  on 
Conflict  of  Laws,  §  47,  which  is  thus  stated  :  "  If  a  married 
man  has  two  places  of  residence,  at  different  times  of  the  year, 
that  will  be  esteemed  his  domicil  which  he  himself  selects,  or 
describes,  or  deems  to  be  his  home,  or  which  appears  to  be  the 
centre  of  his  affairs,  or  where  he  votes,  or  exercises  the  rights 
and  duties  of  a  citizen." 

And  this  residence,  once  obtained,  continues  until  a  new  one 
is  gained.  It  is  not  changed  by  his  occasional  absence,  with 
or  without  his  family,  if  it  be  animo -revertandi. 

The  cases  in  this  court  are  clear  upon  these  points;  see 
Cadwalader  v.  Howell,  3  Harr.  138  ;  State  v.  Ross,  3  Zab.  517; 
Bonnell  v.  Dunn,  4  Butcher  1 53 ;  and  other  cases  therein  cited. 
Also  Thompson's  Case,  1  Wend.  45;  Fitzgerald's  Case,  2 
Caines  R.  318. 

The  order  of  the  Circuit  Court,  refusing  to  quash  the  writ 
of  attachment,  is  reversed,  and  the  writ  must  be  set  aside. 

Judgmeat  reversed.  8  Vr.  492. 


378  NEW  JERSEY  SUPREME  COURT. 


State,  Board  et  al.,  Pros.,  v.  City  of  Hoboken. 


STATE,  JAMES  M.  BOARD,  GEORGIANA  L.  HECKSHER  AND 
MICHAEL  SHANNON,  PROSECUTORS,  v.  CITY  OF  HOBO- 
KEN, 

STATE,  JULIA  REUBELT,  TRUSTEE,  AND  JULIA  REUBELT 
AND  GERARD  H.  COSTER,  TRUSTEE,  AND  GERARD  H. 
COSTER,  PROSECUTORS,  v.  CITY  OF  HOBOKEN. 

1.  Where  the  report  of  assessment  commissioners  for  street  improve- 
ments was  taken  from  the  file  of  the  city  council  and  returned  to  the 
commissioners  for  amendments,  upon  objections  made  by  property 
owners,  council  cannot  recall  and  contirm  it  against  the  protest  of 
the  commissioners  without  amendment,  and  without  notice. 

2.  The  contractor  under  proposals  must  be  held  to  his  bid — not  allowed 
to  underbid  others  and  afterwards  receive  more.  The  excess  will 
be  an  illegal  charge  against  the  land  owners. 

3.  Where  tlie  assessment  is  set  aside,  new  commissioners  will  be  appointed 
by  the  court,  under  the  charter. 


On  certiorari. 

Argued  at  June  Term,  1873,  before  Justices  Bedle,  Wood- 
hull  and  ScuDDER. 

For  the  plaintiffs,  J.  Dixon. 

For  the  defendants,  J.  C.  Besson, 

The  facts  returned  in  these  writs  appear  in  the  opinion  of 
the  court. 

The  opinion  of  the  court  was  delivered  by 

ScuDDER,  J.  Upon  petition  of  property  owners  on  Ferry 
street,  between  Jefferson  street  and  the  western  boundary  of 
the  city  of  Hobokeu,  to  have  the  said  portion  of  Ferry  street 
filled  in,  graded,  curbed,  guttered,  the  sidewalk  flagged  and 
the  proper  cross  bridging  laid  at  the  several  intersections,  pro- 
ceedings were  had  by  the  council  of  the  city,  under  the  charter. 
Acts,  1855,  tit.  6,  §  52,  p.  475,  &c. 


NOVEMBER  TERM,  1873.  379 

State,  Board  et  al.,  Pros.,  v.  City  of  Hoboken. 

The  formal  objections  relating  to  the  advertisement  of 
notice,  passing  the  ordinance,  publication  of  same,  and  adver- 
tisement of  contract  are  not  sustained  by  the  proofs  in  the 
case,  and  the  return  to  the  writ  shows  that  these  formalities 
were  observed.  The  only  irregularity  found  in  the  case,  is  in 
the  form  of  assessment.  The  commissioners,  by  their  report 
dated  December  24th,  1870,  ascertained  the  cost  and  expense 
of  the  improvements  on  Ferry  street,  amounting  to  the  sum  of 
forty-one  thousand  three  hundred  and  forty-five  dollars  and 
thirty -four  cents,  ($41,345.34,)  according  to  the  estimated 
quantities  given  by  the  city  surveyor,  and  incidental  expenses 
to  the  amount  of  fifteen  hundred  dollars,  ($1500).  Annexed 
to  this  report  was  a  schedule,  containing  the  blocks,  the  lots, 
and  number  of  each  of  the  separate  parcels  or  lots  of  land 
shown  on  the  map,  the  name  of  the  owner  or  owners, 
and  the  amount  assessed  to  each  separa'te  parcel  or  lot. 
At  a  stated  meeting  of  the  city  council  January  5th,  1871, 
this  assessment  map  and  report  were  presented,  read,  and  on 
motion  received,  and  the  clerk  was  directed  to  advertise  the 
filing  of  the  same  according  to  law.  At  the  meeting  of  the 
council  on  January  24th,  1871,  objections  to  the  confirma- 
tion of  the  assessment  for  Ferry  street  improvements  were 
presented  and  referred  to  a  committee.  These  objections  were 
made  by  many  of  the  property  owners,  mainly  because  the 
amounts  assessed  were  excessive  and  unjust,  and  there  were 
mistakes  in  names  and  owners  of  lots.  March  14th,  1871,  the 
committee  of  council,  to  whom  these  objections  to  the  confir- 
mation of  assessment  were  referred,  reported  in  favor  of  return- 
ing tlie  assessment  map  back  to  the  commissioners  of  assess- 
ments, for  alteration  in  several  particulars,  as  to  the  names 
of  persons,  division  of  lots,  and  assessments  on  each.  They 
also  recommended  that  Levi  W.  Post,  the  city  surveyor,  be 
authorized  and  empowered  to  take  measurements  on  said  im- 
provement, and  calculate  the  quantities  of  earth  filling,  and 
submit  the  same  to  the  next  meeting  of  the  board.  This 
report  was  received,  and  the  recommendation  and  resolutions 
offered  were  adopted.     At  the  meeting  of  council  March  31st, 


380  NEW  JERSEY  SUPREME  COURT. 

State,  Board  et  al.,  Pros.,  v.  City  of  Hoboken. 

1871,  the  report  of  measurements  made  by  the  city  surveyor 
was  received  and  referred  to  the  special  committee.  It 
showed  a  ditference  between  the  calculations  of  earth  filling  of 
10,593  cubic  yards.  The  whole  amount  reported  by  the  assess- 
ment commissioners  was  27,386  cubic  yards,  and  the  amotint 
estimated  bj  Mr.  Post,  16,793  cubic  yards.  A  counter  report 
was  presented  May  12th,  1871,  by  A.  L.  Du  Puget,  former 
city  surveyor,  adhering  to  his  first  measurements,  accounting 
for  the  discrepancy  by  shrinkage,  inaccurate  methods  of 
boring  for  measurements,  &c.  July  18th,  1871,  at  a  meeting 
of  council,  the  commissioners  of  assessments  for  Ferry  street, 
presented  their  assessment  map  and  report  as  amended. 

The  report  and  map  were  received  and  referred  to  a  com- 
mittee. August  1st,  1871,  the  council  passed  a  resolution 
reciting  that  the  assessment  map  and  report  were  returned  to 
the  commissioners  March  14th,  1871,  for  correction  in  certain 
particulars,  and  that  the  commissioners  having  returned  their 
assessment  map  and  report  not  corrected  as  directed,  they 
thereupon  resolved,  that  the  assessment  for  the  grading,  &c., 
of  Ferry  street,  from  Jefferson  street  to  the  western  boundary, 
be  and  the  same  is  hereby  confirmed  as  originally  filed  in  the 
clerk's  office,  on  the  5th  day  of  January,  1871,  and  that  the 
collector  of  assessments  be,  and  he  is  hereby  directed,  to 
collect  the  same  according  to  law.  The  report  of  the  com- 
missioners, which  it  is  said  was  not  corrected  as  requested, 
dated  July  18th,  1871,  reduced  the  amount  of  assessment 
from  $41,345.34  to  $34,138.06,  and  re-assessed  the  lots  bene- 
fited, making  their  map,  in  other  particulars,  to  agree  with 
the  change.  After  the  council  had  rejected  the  second  assess- 
ment on  August  22d,  1871,  the  commissioners  protested  to 
council  against  their  action,  denied  that  they  had  not  corrected 
their  former  assessment  as  directed,  and  gave  reasons  for  the 
change  of  the  amount,  because  they  were  satisfied  the  former 
measurements  were  erroneous.  A  counter  statement  was  made 
by  Mr.  Du  Puget,  the  former  city  surveyor,  and  the  matter 
ended.  The  city  proceeded  to  collect  the  assessments  accord- 
ing to  the  first  report.     This  report  had  been  recommitted  to 


NOVEMBER  TERM.  1873.  381 

State,  Board  et  al.,  Pros.,  v.  City  of  Hoboken. 

the  assessment  commissioners,  upon  objections  made  to  its 
correctness  by  certain  property  owners,  and  was  afterwards 
confirmed  and  acted  upon  without  notice,  and  the  amended 
report  and  map,  made  by  direction  of  the  council,  was  rejected. 
When  the  first  report  was  taken  from  the  file  and  returned  to 
the  commissioners  for  amendment,  if  it  was  competent  for  the 
council  to  recall  it  and  confirm  it  without  amendment,  which 
is  doubtful,  it  could  only  be  done  by  directing  it  to  be  agaia 
filed  and  recorded  in  the  assessment  book,  pursuant  to  section 
fifty-two  of  the  charter";  and  further,  the  clerk  should  have 
given  notice  of  filing,  and  of  a  meeting  of  council  to  consider 
the  assessments  and  objections  of  persons  interested.  It  was  ir- 
regular, and  a  surprise  to  parties,  to  assent  to  their  objections, 
order  amendments  to  be  made,  and  afterwards  confirm,  without 
amendment  and  witiiout  notice.  It  was  not  the  final  report 
of  the  commissioners,  for  they  had  made  an  amended  report, 
reducing  the  amount  of  the  assessment,  and  it  was  confirmed 
in  face  of  their  protest  against  the  action  of  the  city  council. 
This  entire  proceeding  has  the  appearance  of  being  capricious, 
and  is  illegal  under  the  charter.  There  is  also  a  fact  in  the 
case  that  has  not  been  explained  by  the  papers  returned,  which 
may  be  susceptible  of  satisfactory  explanation,  but  without  it, 
is  fatal  to  the  assessment.  It  appears  that  advertisements  were 
published  for  proposals  for  this  work,  and  many  offers  were 
sent  in,  varying  from  $29,950.17,  the  highest,  to  $24,455.78,. 
the  lowest.  The  contract  was  awarded  to  Dennis  Eagan  for 
the  lowest  sum.  The  papers  show  that  he  receiv^ed  $38,957.09, 
besides  work,  amounting  to  $2388.25,  done  by  property  owners. 
The  contractor  must  be  held  to  his  bid — not  allowed  to  under- 
bid others  and  afterwards  receive  more.  The  excess  would  be 
an  illegal  charge  against  the  land  owners. 

The  entire  assessment  must  be  set  aside,  and,  under  section 
eight  of  the  supplement  to  the  charter,  approved  March  15th^ 
1861,  this  court  will  appoint  new  commissioners  to  examine 
into  the  assessment,  and  report  anew. 

Vol.  VII.  24 


382  NEW  JERSEY  SUPREME  COURT. 


State,  Copeland,  Pros.,  v.  Village  of  Passaic. 


STATE,  GEORGE  COPELAND,  PROSECUTOE,  v.  THE  VILLAGE 
OF  PASSAIC. 

1.  The  effect  of  a  repealing  clause  upon  a  previous  statute,  which  confers 
a  special  jurisdiction,  is  to  end  all  proceedings  under  it  which  are  not 
closed,  unless  there  be  an  exception  in  the  repealing  statute. 

"2.  Where  commissioners  are  appointed  to  assess  damages  for  opening 
streets,  &c.,  and  a  new  act  is  passed  substituting  a  new  method  of  pro- 
cedure, giving  an  appeal  to  other  commissioners  to  be  appointed  by  a 
Justice  of  the  Supreme  Court,  and  repealing  the  former  act  without 
exception,  an  appointment  of  commissioners  for  review  under  the 
substituted  law,  will  be  irregular. 

3.  Such  irregularity  may  be  cured  as  well  by  a  subsequent  statute  as  by 
a  saving  clause  in  the  repealing  act. 

4.  When  the  subsequent  act  remedies  all  defective  assessments,  where 
they  were  properly  made  in  proportion  to  the  benefits  received,  if  it 
appears  that  the  party  assessed  liad  no  notice,  was  not  present,  or  had 
no  opportunity  of  being  heard  before  the  commissioners,  it  will  not 
be  assumed,  in  the  absence  of  proof,  that  such  person  was  properly 
assessed  in  proportion  to  the  benefits  received,  although  the  commis- 
sioners do  so  report. 

5.  Under  this  charter,  the  entire  assessment  may  be  set  aside,  and  new 
commissioners  appointed  to  re-assess  the  damages. 


Dn  Gertiorari  to  the  village  of  Passaic,  to  briug  up  the 
■assessment  or  estimate  of  value  aud  damages,  made  by  Richard 
R.  Post,  Edward  Morrelland  George  Denholra,  commissioners 
appointed  by  Justice  Bedle,  September  18th,  1871,  on  the  ap- 
peal of  Daniel  Demarest,  to  review  and  examine  the  assess- 
ments of  Conkling,  Coudray  and  Kip,  commissioners,  &c., 
appointed  March  6th,  1871,  by  the  board  -of  council  of  the 
village  of  Passaic,  for  the  laying  and  opening  of  Sherman 
street. 

Argued  at  June  Term,  1873,  before  Justices  Bedle,  Wood- 
hull  and  ScuDDER. 

For  the  plaintiff,  A.  B.  Woodruff, 

JFor  the  defendant,  T.  M.  Moore. 


NOVEMBER  'jlERM,  1873.  383 

State,  Copeland,  Pros.,  v.  Village  of  Passaic. 

The  opinion  of  the  court  was  delivered  by 

ScUDDER,  J.  The  first  reason  assigned  for  setting  aside 
the  assessment  made  by  the  commissioners,  Post,  Morrell  and 
Denhohn  is,  that  they  were  not  lawfully  appointed. 

The  charter  of  the  village  of  Passaic,  approved  March  10th, 
1869,  gave  no  appeal  from  the  assessment  of  the  commis- 
sioners appointed  by  the  board  of  council,  but  in  section 
nineteen,  directed  that  a  report,  with  a  survey  map,  estimate 
and  assessment  of  the  cost  of  the  improvement,  in  proportion 
to  the  benefit  received,  &c.,  be  made  to  the  board  of  council. 

If  no  remonstrance  was  made  by  the  owners  of  two-thirds 
in  value  of  the  lands  proposed  to  be  assessed,  the  board  of 
council  should  proceed  to  execute  such  improvement;  but  if 
such  remonstrance  should  be  filed,  the  board  should  proceed 
no  further  thereon. 

The  act  approved  March  21st,  1871,  which  is  entitled  "An 
:;ct  for  revising  and  amending  the  act  to  incorporate  the  vil- 
lage of  Passaic,  and  to  set  off  said  village  from  the  township  of 
Acquackanonk,"  re-enacts,  in  substance,  section  nineteen  of 
the  former  act,  and  adds :  "  If  the  owner  of  any  lands  or 
real  estate  so  taken  or  damaged,  is  dissatisfied  with  the  value 
and  damages  reported  by  said  commissioners,  or  if  the  owner 
-of  any  lands  assessed  is  dissatisfied  with  such  assessment,  he 
may  apply  to  a  justice  of  the  Supreme  Court,  at  the  Circuit 
Court  held  in  Passaic  county,  next  after  the  end  of  twenty 
days,  &c,,  giving  ten  days'  notice  of  such  application  to  the 
village  clerk,  or  in  his  absence  to  the  president  of  the  village, 
&c.,  and  said  justice  shall  appoint  three  commissioners,  who 
shall  meet  on  ten  days'  notice  given  by  or  to  any  of  said  per- 
sons so  applying  to  each  of  the  others,  &c.,  and  to  the  village 
clerk,  and  the  commissioners  shall  proceed  to  examine 
persons  and  papers,  and  to  swear  witnesses  and  to  compel 
their  attendance,  &c.,  and  shall  review  the  proceedings  of  the 
said  commissioners  appointed  by  the  board  of  council  so  far 
only  as  the  complaint  or  petition  of  the  applicant  to  the 


384  NEW  JERSEY  SUPREME  COURT. 


State,  Copeland,  Pros.,  v.  Village  of  Passaic. 


justice  of  said  court  is  concerned,  and  report,  which  report 
shall  be  conclusive." 

This  abstract,  taken  from  the  nineteenth  section,  will  give 
the  parts  which  are  most  material  in  examining  the  question 
raised. 

Tiie  appointment  of  the  first  commissioners  was  made  by 
the  board  of  council  under  the  charter  of  March  10th,  1869. 
The  appointment  of  the  second  commissioners,  by  Justice 
Bedle,  was  made  under  the  act  of  March  21st,  1871,  which 
gave  this  review.  The  act  is  silent  as  to  existing  proceedings 
under  the  act  of  1869,  and  only  repeals  the  former  statute  so 
far  as  it  is  inconsistent  with  its  provisions. 

Section  nineteen  of  the  act  of  1871,  is  section  nineteen  of 
the  act  of  1869,  with  the  provision  for  the  appointment  of 
commissioners  for  review,  to  be  appointed  by  a  justice  of  the 
Supreme  Court.  It  is  a  substitution  of  one  section*  in  a  stat- 
ute by  another,  which  is  in  effect  a  repeal  of  the  former. 

As  this  is  the  only  section  in  the  charter  which  authorizes 
proceedings  to  lay  out,  open,  widen,  alter,  grade,  pave,  &c., 
streets  in  the  village  of  Passaic,  when  the  section  is  repealed 
all  proceedings  under  it  fall,  which  are  pending  and  incom- 
plete at  the  time  the  repeal  takes  effect. 

The  effect  of  a  repealing  clause  on  a  previous  statute,  which 
imposes  a  penalty,  or  confers  a  special  jurisdiction,  is. to  end 
all  proceedings  under  it,  which  are  not  closed,  unless  there  be 
an  exception  in  the  repealing  statute.  Butler  v.  Palmer,  1 
Hill  330;  Sedg.  on  Stat  and  Const.  Law  129,  &o. ;  Behidere 
V.  Warren  Railroad  Co.,  5  Vroom  193. 

This  act,  which  gives  power  to  condemn  lands  for  streets, 
assessing  damages  and  benefits  for  the  same,  is  a  statute  con- 
ferring jurisdiction,  and  is  matter  of  strict  interpretation. 

The  proceedings  under  the  act  of  1871,  to  appoint  commis- 
sioners to  review  the  act  of  commissioners  appointed  under 
the  act  of  1869,  are  irregular.  The  action  of  the  former 
commissioners  and  board  of  control  should  stand  or  fall,  as 
they  were  under  the  act  of  1869,  at  the  time  of  the  repeal  of 


NOVEMBER  TERM,  1873.  '  385 

State,  Copeland,  Pros ,  v.  Village  of  Passaic. 

section  nineteen,  by  the  enactment  of  a  substituted  section  in 
the  later  charter. 

But  the  legislature,  in  the  charter  of  the  city  of  Passaic, 
approved  April  2d,  1873,  has  attempted  to  cure  these  defec- 
tive assessments.  This  may  be  done  as  well  by  subsequent 
statute,  as  by  a  saving  clause  in  the  Kepealing  act.  Section 
eighty-four  enacts  that,  whereas  doubts  have  arisen  as  to  the 
validity  of  certain  assessments  for  improvements  in  the  village 
of  Passaic,  under  the  acts  of  March  10th,  1869,  and  March 
21st,  1871,  and  it  is  desirable  that  the  same  should  be  vali- 
dated and  confirmed,  therefore  all  such  assessments  are  thereby 
declared  to  be  valid  and  effectual  in  law,  as  if  every  provision 
of  the  charter  of  the  village  of  Passaic,  under  which  said 
assessments  were  made,  had  been  complied  with,  except  in 
cases  where  it  shall  appear  to  the  Supreme  Court  that  the  com- 
missioners who  made  such  assessments  have  not  properly 
assessed  the  lands  and  real  estate  by  said  charter  directed  to 
be  assessed,  in  proportion  to  the  benefit  received  thereby,  in 
which  case  said  assessments  may  for  that  cause  be  set  aside. 

This  section  cures  these  assessments,  except  so  far  as  it  shall 
appear  that  they  have  not  been  properly  assessed  in  proportion 
to  the  benefits  received. 

Such  retroactive  statutes  are  questionable  in  policy,  but  their 
validity  within  certain  limitations,  especially  excepting  the 
rights  secured  by  the  constitution,  has  been  assumed  in  our 
state.  State  v.  Neivark,  3  Butcher  185;  State  v.  Bergen,  5 
Vroom  438 ;  State  v.  Toion  of  Union,  4  Vroom  350. 

The  question  left  for  decision  is,  therefore,  one  of  construc- 
tion. The  true  and  just  construction  of  the  phrase  "  properly 
assessed  in  proportion  to  the  benefits  received,"  is  that  the 
assessment  has,  in  fact,  been  fairly  and  honestly  made,  and 
is  equal  and  just  in  amount,  in  proportion  to  the  benefit 
received.  And  this  brings  us  to  the  consideration  of  the 
second  and  third  reasons  assigned  for  setting  aside  this  assess- 
ment. 

The  second  is,  that  the  commissioners  did  not  proceed 
according  to  law  in   making   said    assessment.     This  is  too 


386  NEW  JERSEY  SUPREME  COURT. 

State,  Copeland,  Pros.,  v.  Village  of  Passaic. 

general  to  be  treated  specifically.  It  has  been  answered,  in 
part,  by  what  has  preceded,  and  it  will  be  considered,  also, 
under  the  third  reason,  which  is,  that  the  commissioners  gave 
no  notice  to  the  land  owners  interested  in  the  making  of  said 
assf'ssment,  and  no  opportunity  to  be  heard  in  relation  thereto. 

Under  the  provision  in  section  nineteen,  of  the  act  of  1871, 
that  a  dissatisfied  owner  of  lands  may  apply  to  a  Justice  of 
the  Supreme  Court  to  appoint  three  commissioners  to  review 
the  assessment  made  by  the  commissioners  named  by  the 
board  of  council,  Daniel  Demarest  applied  for  the  appointment 
of  such  commissioners.  They  were  appointed  and  their  report 
shows  that  the  only  notice  given  was  ten  days'  notice  to  the 
village  clerk,  and  upon  this  they  proceeded  and  increased  the 
assessment  for  damages  of  said  Daniel  Demarest  to  eighteen 
hundred  dollars,  ($1800,)  and  made  un  additional  assessment 
on  the  prosecutor,  George  Copeland,  of  five  hundred  and  fo.ur 
dollars  and  eighty-nine  cents  ($504.89,)  for  benefits,  to  aid  in 
payment  of  the  increased  damages. 

It  appears  affirmatively,  by  affidavits  taken  on  the  part  of 
the  prosecutor,  that  no  notice  was  given  to  him  either  of  the 
application  to  tiie  Justice  of  the  Supreme  Court  for  the  appoint- 
ment of  commissioners,  or  of  their  meeting  to  examine  the 
premises  and  witnesses. 

The  only  notice  required  by  the  act  for  the  application  to 
the  Justice  of  the  Supreme  Court,  is  ten  days'  notice  to  the 
village  clerk,  or,  in  his  absence,  to  the  president  of  the  village. 
No  other  notice  was  therefore  necessary. 

But  it  is  farther  enacted,  that  the  commissioners  "sha-ll 
meet  on  ten  days'  notice,  given  by,  or  to  any  of,  said  persons 
so  applying  to  each  of  the  others,  or  to  his,  her,  or  their  at- 
torney or  agent,  if  they,  or  either  of  them,  reside  in  said 
village,  and  to  the  village  clerk,  and  shall  proceed  to  examine 
persons,"  &c. 

The  construction  put  upon  this  by  the  defendants  is,  that 
such  notice  was  only  to  be  given  to  each  of  the  other  persons^ 
who  make  application  for  commissioners  to  review. 


NOVEMBER  TERM,  1873.  3&7 

State,  Copeland,  Pros.,  v.  Village  of  Passaic. 

The  word  "  others  "  should  have  a  wider  signification  given 
to  it,  and  it  extends  to  all  who  are  interested  in  the  applica- 
tion for  a  new  assessment. 

The  statute,  then,  required  notice  to  be  given  of  the  meet- 
ing of  these  commissioners,  to  examine  the  question  of  re-as- 
sessment, and  no  such  notice  was  given.  It  appears,  by  the 
affidavits,  that  the  prosecutor  was  not  notified,  was  not  present, 
and  had  no  opportunity  of  being  heard  before  the  commis- 
sioners. 

Without  his  knowledge  or  consent,  therefore,  this  increased 
assessment  of  $504.89  was  made  against  him,  and  constituted 
a  lien  upon  his  lands  for  payment.  By  the  express  words  of 
the  act,  also,  this  assessment  is  made  conclusive  on  all  parties. 

Was  the  assessment,  then,  properly  made  in  proportion  to 
the  benefits  received  ? 

There  can  be  no  proper  assessment  of  damages  against  a  per- 
son by  such  commissioners  which  shall  finally  conclude  his 
rights,  unless  he  have  actual  or  constructive  notice,  and  have 
the  opportunity  to  be  heard. 

This  is  the  fact  upon  which  the  jurisdiction  depends,  and  is 
fundamental  and  essential.  Slate  v.  Jersey  Oity,  4  Zab.  662  ; 
State  V.  Newark,  1  Dutcher  399 ;  State  v.  Elizabeth,  1  Vt^oom- 
365 ;  8.  C,  2  Vroom  547 ;  mion  on  Mun.  Corp.,  §  642  and 
note. 

Nor  will  the  court  assume,  in  the  absence  of  all  proof,  as 
there  is  none  in  this  case,  that  the  prosecutor's  lands  were 
properly  assessed  in  proportion  to  the  benefits  received.  It  is 
not  enough  that  the  report  of  the  commissioners  says  so,  because 
they  have  acted  without  jurisdiction  of  the  person  whose  rights 
they  were  to  adjudge,  and  in  his  absence  have  made  up  their 
judgment  against  him. 

Giving,  therefore,  the  widest  latitude  in  interpreting  this 
section  eighty-four  of  the  act  of  1873,  that  the  legislature  in- 
tended to  remedy  all  defective  assessments  where  they  were 
made  in  proportion  to  the  benefits,  it  is  enough  for  this  court 
to  say,  that  where  it  appears  there  was  no  notice  to  the  party 
who  is  assessed,  we  will  not  assume,  in  the  absence  of  proof,. 


S88  NEW  JERSEY  SUPREME  COURT. 

State,  Copeland,  Pros.,  v.  Village  of  Passaic. 

that  such  person  was  properly  assessed  in  pro2)ortion  to  the 
benefit  received. 

If  the  assessment  had  been  made  on  notice  to  the  party  as- 
sessed, or  in  his  presence,  the  presumption  would  be  in  favor 
of  the  report,  if  it  stated  that  the  assessment  was  made  in  pro- 
portion to  the  benefits  received ;  but  without  said  notice,  or 
presence,  there  can  be  no  such  presumption. 

The  proceedings  under  review  in  this  case  are,  the  applica- 
tion made  by  Daniel  Demarest  for  a  reassessment  under  the 
act  of  1871 .  The  increased  assessment  made  is  for  his  benefit, 
and  the  present  prosecutor,  and  other  abutters  on  Sherman 
street  are  assessed  to  pay  his  damages  on  the  ground  of  special 
benefits.  If  this  increased  assessment  is  set  aside,  as  to  one  of 
the  persons  assessed  for  a  proportional  amount  of  the  damages, 
it  is  equitable  and  just  that  it  should  be  set  aside  as  to  all,  if 
there  is  a  provision  in  either  of  the  charters  which  can  be  used 
for  a  new  assessment. 

Section  ninety-two  of  the  charter  of  1873,  p.  517,  in  the  re- 
pealing clause,  saves  "any  rights  and  dues  which  the  village 
of  Passaic,  or  any  person  or  corporation  is  or  are  entitled  to  by 
virtue  thereof,  and  any  proceedings  had  or  commenced  under 
said  acts  (1869-1871)  shall  proceed  and  be  continsed  the  same 
as  if  this  act  had  not  been  passed,  except,"  &c. 

The  act  of  1871,  section  twenty-two,  directs  this  court,  in 
case  of  setting  aside  any  such  assessment,  to  appoint  new  com- 
missioners to  examine  into  and  I'eport  anew. 

Let  the  entire  assessment,  therefore,  be  set  aside,  and  the 
court  will,  upon  apjjlication,  appoint  new  commissioners. 

Cited  in  Slate,  Harris.,  pros.,  v.  Jersey  City,  9  Vr.  85 ;  Slate,  Myerson 
pros.,  V.  Passaic,  9  Vr.  171 ;  Hader  v.  Township  of  Union,  10  Vr.  509 


NOVEMBER  TERM,  1873.  389 


Cox  et  al.  V.  Marlatt. 


WILLIAM  M.  COX  ET  AL.  v.  BENJAMIN  MAELATT. 

Where  a  judgment  was  entered  October  1st,  1863,  the  rate  of  interest 
being  then  six  per  centum,  such  rate  w«ll  not  be  increased  to  seven 
per  centum  after  March  loth,  1866,  when  the  act  was  passed  changing 
the  legal  rate  of  interest. 


Several  executions  were  issued  on  judgments  obtained  in 
this  court,  at  the  suit  of  William  M.  Cox,  John  R.  Ely, 
Aaron  Dawes,  and  Alfred  Perrine,  respectively,  against  the 
property  of  Benjamin  Marlatt.  The  sheriffs  of  Middlesex 
and  Mercer  made  sale  of  the  defendant's  property,  under  the 
executions,  and  the  money  was  paid  into  court.  By  the  order 
of  this  court,  the  amount  raised  upon  the  executions,  ^5419.30, 
was  directed  to  be  paid  by  the  clerk,  according  to  the  priorities. 
The  money  raised  not  being  sufficient  to  pay  the  amount  of 
all  the  executions,  the  question  was  raised  by  Alfred  Perrine, 
the  last  execution  creditor,  as  to  the  amount  of  interest  which 
should  be  computed  on  the  judgment  and  execution  of  Aaron 
Dawes,  his  judgment  being  dated  October  1st,  1863.  Dawes 
•claims  interest  at  the  rate  of  six  per  cent,  from  October  1st, 
1863,  to  March,  1866,  and  at  the  rate  of  seven  per  cent,  after 
the  latter  date,  being  the  time  of  the  enactment  of  the  statute 
increasing  the  rate  of  interest. 

Argued  at  June  Term,  1873,  before  Justices  WooDHULL 
:and  ScUDDER. 

For  Alfred  Perrine,  Rickey  &  Emery. 

For  Aaron  Dawes,  M.  Beasley,  Jr. 

The  opinion  of  the  court  was  delivered  by 

ScUDDER,  J.  The  allowance  of  interest  on  the  several 
judgments  is  not  questioned  in  this  case,  nor  can  it  be  according 
to  the  .settled  practice  of  the  courts  of  this  state.  After  much 
■debate  in  the  English  courts,  the  law  was  settled  by  Stat.  1 


I 


390  NEW  JERSEY  SUPREME  COURT. 

Cox  et  al.  V.  Marlatt. 

&  2  Vid.,  ch.  110,  §  17,  which  declares  that  every  judgment 
debt  shall  carry  interest  at  the  rate  of  four  per  centum  per 
annum,  from  the  time  of  entering  of  the  judgment,  and  from 
the  time  of  the  passage  of  the  act  in  cases  of  judgment  then 
entered  up,  and  not  carrying  interest  until  the  same  shall  be 
satisfied,  and  such  interest  may  be  levied  under  a  writ  of  exe- 
cution on  such  judgment. 

Our  practice  has  been,  for  many  years,  independent  of  any 
express  statute,  to  allow  interest  to  be  levied  under  execution 
as  an  incident  to  the  judgment,  and  as  an  increase  of  damages 
for  the  detention  of  the  debt,  without  bringing  a  distinct 
action  for  the  interest  on  damages  for  such  detention. 

It  has  also  been  held  that  the  prior  contract  or  right  of 
action  is  extinguished  by  the  judgment,  as  a  higher  security. 
The  judgment  is  called  a  debt  of  record,  which  is  the  highest 
security  a  party  can  obtain  at  law. 

Upon  this  general  subject,  see  notes  in  Selleck  v.  French,  1 
Am.  Lead.  Cases  509  ;  Sedgwick  on  Damages  389 ;  Sayre  v. 
Anstin,  3  Wend.  496 ;   Olden  v.  Hallet,  2  South.  466. 

Neither  is  it  disputed  between  these  parties,  that  the  court 
have  control  over  the  funds  produced  by  these  executions, 
whether  in  the  hands  of  the  sheriff  or  when  paid  into  court. 

This  has  also  been  definitely  determined,  and  cannot  now 
be  controverted.     Stebhins  v.  Walker,  2  Green  90. 

These  preliminary  points  being  conceded,  the  only  question 
that  remains  for  consideration  is,  whether,  after  a  judgment 
has  been  obtained  which  carries  a  certain  rate  of  interest 
under  the  then  existing  law,  a  change  of  that  law  by  a  subse- 
quent statute,  increasing  or  diminishing  the  former  rate  of  in- 
terest, will  affect  the  amount  that  can  be  collected  under  exe- 
cution upon  such  judgment. 

The  effect  of  a  judgment  is  to  fix  the  rights  of  the  parties 
thereto,  by  the  solemn  adjudication  of  a  court  having  juris- 
diction. How  those  rights  can  be  affected  by  any  subsequent 
legislation,  is  not  apparent.  This  contract  of  the  highest 
authority  cannot  be  disturbed  so  long  as  it  remains  unre- 
versed and  unsatisfied. 


NOVEMBER  TERM,  1873.  391 

Cox  et  al.  V.  Marlatt. 

Changing  the  rate  of  interest  does  not  affect  existing  con- 
tracts, or  debts  due  prior  to  such  enactment,  whether  they  be 
evidenced  by  statute,  by  judgment,  or  by  agreement  of  the 
parties. 

Such  has  been  the  uniform  course  of  decision  in  our  courts. 
Verree  v.  Hughes,  6  Halst.  91,  is  in  point.  The  act  against 
usury,  passed  February  8th,  1797,  fixed  the  rate  of  interest  at 
seven  per  centum.  By  the  act  of  December  5th,  1823,  the 
rate  was  changed  from  and  after  the  fourth  day  of  July,  then 
next  ensuing,  to  six  per  centum. 

A  judgment  was  entered  November  29th,  1825,  on  a  bond 
bearing  date  June  6th,  1809,  which  bore  seven  per  cent,  in- 
terest. The  bond,  by  the  act  of  the  party  holding  it,  was 
merged  in  the  judgment.  While,  therefore,  interest  was  re- 
coverable up  to  the  time  of  tlie  judgment,  at  seven  per  cent.,, 
upon  the  bond,  when  the  judgment  was  entered,  another  debt 
was  created  under  the  then  existing  statute  of  1823,  and  the 
court  held  that  after  the  date  of  the  judgment,  the  interest 
must  be  computed  at  six  per  cent. 

In  No'ith  River  Meadow  Company  v.  Shrewsbury  Church,  2 
Zab.  424,  where  an  assessment  for  benefits  to  defendants'  lands- 
was  made  in  1823,  prior  to  the  act  of  that  year  going  into 
effect,  it  was  held  that  interest  should  be  computed  on  such 
assessment,  at  the  rate  of  seven  per  cent.,  and  not  the  reduced 
rate  of  six  per  cent. 

Also  in  equity  the  same  rule  has  been  held.  Thus  in  Wil- 
son v.  Harsh,  2  Beas.  289,  the  complainants'  bond  and  mort- 
gage were  made  in  Essex  county,  where  interest  could  be  taken 
by  contract,  at  the  rate  of  seven  per  cent.,  while  the  general 
statute  allowed  interest  only  at  the  rate  of  six  per  cent.,  the 
court  adjudged  that  the  decree  upon  foreclosure  would  bear 
only  six  per  cent,  intei'est,  although  founded  on  a  mortgage 
drawing  seven  per  cent. 

It  will  be  seen  that  these  cases  are  decided  on  the  principles 
above  stated,  that  the  parties'  rights  are  fixed  by  the  judgment 
of  the  court,  and  the  judgment  carries  with  it  its  incidents,, 
equally  determined  and  all  relating  to  the  date  of  its  entry. 


392  NEW  JERSEY  SUPREME  COURT. 

Warwick  v.  Cox. 

If  it  be  said  that  the  interest  is  given  as  damages  for  the  de- 
tention of  the  debt,  and  that  the  damages  are  greater  when 
seven  per  cent,  interest  can  be  had,  tlian  when  only  six  could 
be  obtained,  and  for  such  detention  after  the  rate  is  increased, 
there  should  be  additional  damages  allowed,  the  answer  is,  that 
there  can  be  no  second  assessment  where  the  amount  of  the 
debt  or  liability  has  been  once  adjudged,  and  the  course  of 
action  remains  the  same. 

The  interest  is  the  measure  of  damages  for  the  detention, 
and  that  must  relate  to  the  time  when  the  amount  is  fixed  by 
the  entry  of  judgment. 

The  order  must  be  made  to  the  clefk  accordingly,  that  in- 
terest on  the  judgment  of  Aaron  Dawes,  shall  only  be  allowed 
and  paid  at  the  rate  of  six  per  cent,  from  the  date  of  its  entry 
on  October  1st,  1863. 

Cited  in  Wilson  v.  Cobb,  4  Stew.  Eg.  91. 


WILLIAM  WARWICK  v.  HENRY  T.  COX. 

Unless  the  poslea  be  filed  within  the  ten  days  limited  by  rule  forty-five  of 
the  Supreme  Court,  at  the  first  term  after  verdict,  the  party  holding 
the  postea  cannot,  after  that  time,  move  for  the  filing  and  judgmeot 
without  notice  to  the  opposite  party. 


On  motion  to  open  judgment  and  take  postea  from  files  of 
court. 

Argued  at  June  Term,  1873,  before  Justices  Woodhull 
and  ScUDDER. 

For  the  plaintiff,  W.  D.  Holt. 

For  the  defendant,  M.  Beasley,  Jr. 

The  opinion  of  the  court  was  delivered  by 

ScuDDER,  J.  At  the  May  Term,  1871,  of  Mercer  Circuit 
Court,  there  was  a  judgment  obtained  by  the  plaintiff  against 
the  defendant;  at  the  June  Term  of  the  Supreme  Court  a 


NOVEMBER  TERM,  1873.  393. 

Warwick  v.  Cox. 

motion  was  made  by  plaintiff's  attorney  to  file  the  jiostea  and 
enter  judgment  nisi. 

The  defendant's  counsel  moved  in  arrest  of  judgment,  and,, 
after  argument,  the  motion  was  denied. 

Tlie  postea  was  not  filed  and  the  judgment  was  not  entered 
until  November  24th,  1871.  The  November  Term  of  Su- 
preme Court  began  November  7th,  1871. 

No  notice  was  given  of  motion  to  ^\e  postea  and  enter  judg- 
ment, and  the  defendant  had  no  knowledge  of  the  judgment 
until  execution  was  levied  on  his  property. 

Rule  forty-five  of  the  Supreme  Court  orders,  that  unless  the- 
postea  be  filled  within  ten  days  after  the  first  day  of  the  term 
next  after  the  verdict,  such  failure  shall  be  considered,  at  the 
option  of  the  opposite  party,  a  waiver  of  such  verdict,  unless 
the  court,  in  its  discretion,  shall  order  otherwise. 

Unless  the  postea  be  filed  within  the  time  limited  at  the  first 
term  after  verdict,  the  party  holding  the  postea  cannot,  after 
that  time,  move  for  the  filing  and  judgment,  without  notice  tO' 
the  opposite  party. 

The  entry  of  judgment  without  such  notice  is  irregular,  and 
will  be  set  aside. 

Where  it  is  the  defendant's  desire,  as  it  is  here,  to  take  a 
writ  of  error,  if  he  has  no  notice  of  the  judgment  at  the  terra 
at  which  it  is  rendered,  or  within  fifteen  days  thereafter,  he 
cannot  file  his  recognizance  of  bail  so  as  to  stay  execution. 
Nix.  Dig.,  Errors,  p.  289,  §  11.* 

The  plaintiff,  by  filing  his  postea  and  entering  judgment  out 
of  time  without  notice,  has  this  advantage,  that  the  defendant,, 
although  he  might  bring  his  writ  of  error,  could  not  stay  the 
execution  against  him. 

The  judgment  should  be  opened  and  the  ^os^ea  taken  from 
the  files  of  the  court ;  the  plaintiff  can  then  make  his  motion 
upon  notice,  to  file  his  ^os^a  and  enter  judgment,  upon  which 
the  court  may  take  such  action  as  in  its  discretion  may  seem 
right  between  the  parties. 

Let  the  order  be  entered  accordingly. 

*  Rev.,  p.  375,  I  18. 


394  NEW  JERSEY  SUPREME  COURT. 


State,  Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township. 


THE  STATE,  J.  DAYTON  WINANS  AND  JOHN  A.  AKRY, 
PROSECUTORS,  v.  MOSES  T.  CRANE,  COLLECTOR  OF 
CRANFORD  TOWNSHIP,  UNION  COUNTY. 

1.  Where  by  the  act  of  March  26th,  1872,  constituting  a  board  of  com- 
missioners of  highways  of  the  township  of  Cranford,  to  consist  of  five 
persons,  freeholders  and  residents  in  the  township,  for  the  purpose  of 
laying  out,  &c.,  public  roads,  it  was  provided  by  section  3,  that  the  said 
commissioners  should  be  elected  by  the  legal  voters  of  the  township, 
at  the  next  annual  town  meeting  after  the  passage  of  the  act,  and  in 
the  same  manner  in  which  the  other  officers  of  the  said  township  are 
elected  ;  four  of  them  were  to  be  elected  from  the  four  road  districts 
of  tiie  township,  and  one  elected  at  large,  from  any  road  district,  as 
president  of  the  board,  and  every  two  years  there  was  to  -be  an  elec-" 
tion  at  the  annual  town  meeting,  and  if  a  vacancy  occurred  by  death 
or  a  commissioner  becoming  a  non-resident,  the  township  committee 
was  authorized  to  fill  it ;  and  at  the  first  election  Cox  and  Crane  each 
received  the  same  number  of  votes  for  commissioner  at  large  and 
thereupon  the  town  committee  unanimously  elected  Cox,  as  president 
of  the  board.  Held,  that  the  election  of  Cox  was  legal,  it  having 
been  in  the  manner  as  other  township  officers,  and  the  action  was 
warranted  by  the  relation  of  the  act  of  1872,  to  the  act  of  1860,  {Nix. 
Dig.  992,)  in  regard  to  the  manner  of  election. 

2.  The  action  of  commissioners  in  making  assessments  of  damages  and 
benefits  for  improvements  is  judicial,  and  a  commissioner  interested 
in  the  assessment,  otherwise  than  as  a  general  tax  payer,  is  disquali- 
fied from  acting  on  the  fundamental  maxim,  that  no  man  can  be  a 
judge  in  his  own  cause. 

3.  The  efiect  of  his  interest  is  not  confined  alone  to  the  commissioner  in- 
terested, for  the  action  of  the  whole  body  of  commissioners  is  voidable, 
if  the  party  interested  took  part  in  it,  and  even  if  there  was  a  mnjority 
of  the  commissioners  left,  competent  to  act  without  his  vote. 

4.  The  fact  that  all  power  being  lodged  in  the  commissioners  to  lay  out 
roads  in  the  township,  and  that  none  could  be  laid  if  it  happened  that 
a  majority  of  them  were  interested,  unless  they  were  permitted  to  act, 
will  not  create  such  a  legal  necessity  as  to  have  interested  commis- 
sioners sit  in  judgment  on  their  own  cases. 

5.  Disqualifications  by  reason  of  interests  that  are  common  to  all  tax 
payers  may  be  removed  by  the  legislature,  but  the  legislature  has  not 
the  power,  where  the  interest  is  peculiar  and  direct,  to  authorize  an 
interested  commissioner  to  decide  his  own  cause,  or  to  give  efiect,  by 
a  retrospective  act,  to  any  action  of  the  commissioners  in  which  he 
took  part. 


NOVEMBER  TERM,  1873.  395 

State,  "Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township. 

5.  When  the  legislature  provides  for  the  exercise  of  judicial  functions  it 
cannot  change  their  essential  nature,  and  authorize  a  judgment  in 
violation  of  the  maxim  that  no  person  can  be  a  judge  in  his  own 
cause.  That  maxim  is  founded  in  natural  justice  and  fundamental 
law,  and  is  inherent  in  and  a  part  of  the  nature  of  judicial  action. 


On  certiorari  to  review  the  return  of  a  public  road  in  the 
township  of  Cranford. 

Argued  at  June  Term,  1873,  before  Justices  Bedle,  Wood- 
hull  and  ScuDDER. 

For  the  prosecutors,  R.  S.  Green. 

For  the  defendant,  /.  Henry  Stone  and  W.  J.  Magie. 

The  opinion  of  the  court  was  delivered  by 

Bedle,  J.  This  certiorari  brings  up  for  review  the  return 
of  a  public  road  called  South  avenue,  including  the  assess- 
ment for  damages  and  benefits,  and  the  subsequent  proceed- 
ings thereon.  The  road  was  laid  out  by  a  road  board  of  five 
members,  and  the  return  signed  by  four  of  them.  Cox,  Horn, 
Eimendorf,  and  Hammer.  The  first  question  of  importance 
is  in  regard  to  the  legality  of  the  election  of  Cox.  Cranford 
township  was  set  off  -by  an  act  of  March  14th,  1871,  [Laws, 
1871,  p.  476,)  and  in  it,  by  section  ten,  it  was  provided  that 
all  elections  should  be  by  ballot,  until  otherwise  determined, 
according  to  law,  and  that  all  the  provisions  and  restrictions 
of  the  act  of  1860,  authorizing  the  inhabitants  of  townships 
to  vote  by  ballot  and  the  supplements  sluould  apply  to  that 
township.  Among  those  provisions  in  the  act  of  1860,  [Nix. 
Dig.  992,  §§  5,  6,)*  the  township  committee  had  power  to 
elect  between  those  having  an  equal  number  of  votes  for  the 
same  office.  The  road  board  is  a  creature  of  an  act  of  March 
26tli,  1872,  {Laws,  1872,  p.  130,)  and  it  provides  for  a  board 
of  commissioners  of  highways,  to  consist  of  five  persons, 
freeholders  and  residents  in  the  township,  for  the  purpose  of 
laying  out,  vacating  and  altering  public  roads  in   the  town- 

*Bev.,p.  1201,  U  45,46. 


396  NEW  JERSEY  SUPREME  COURT. 

State,  Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township. 

ship.  It  repealed  all  acts  and  part'?  of  acts,  authorizing  sur- 
veyors of  the  highways  to  perform  those  duties.  Tiie  com- 
missioners, by  section  three,  are  to  be  elected  by  the  legal  voters 
in  the  township,  at  the  next  annual  town  meeting  after  the 
passage  of  the  act,  and  "  in  the  same  mannei-  in  which  the  other 
officers  of  the  said  township  are  elected."  Their  term  of  office 
is  two  years.  Four  of  them  were  to  be  elected  from  the  four 
road  districts  of  the  township,  and  one  elected  at  large  from 
any  road  district,  as  president  of  the  board.  Every  two  years 
there  was  to  be  an  election  at  the  annual  town  meeting,  and 
if  a  vacancy  occurred  by  death  or  becoming  a  non-resident, 
the  township  committee  was  authorized  to  fill  it.  At  the  first 
election,  Cox  and  one  Crane  each  received  the  same  number 
of  votes  for  commissioner  at  large.  Thereupon  the  township 
committee  unanimously  elected  Cox  as  the  chairman  of  the 
board.  I  think  it  quite  clear  that  the  committee  had  no 
power  to  fill  a  vacancy  except  in  the  case  of  death  or  non- 
residence,  as  provided  in  section  three.  The  act  of  1872  con- 
templates an  election,  and  is  inconsistent  with  any  power  in 
the  committee  to  appoint  under  the  general  township  act,  or 
the  act  of  1860.  But,  notwithstanding  that,  and  without  dis- 
cussing any  question  of  de  facto  holding,  I  am  satisfied  that 
the  action  of  the  committee  was  warranted  by  the  relation  of 
the  act  of  1872  to  the  act  of  1860,  in  regard  to  the  manner 
of  the  election.  The  manner  of  the  election  is  the  same  as 
other  township  officers,  and  that  is  determined  by  the  act  of 
1860,  which  is,  among  other  things,  by  ballot,  by  a  plurality 
of  votes,  and  in  case  of  a  tie,  that  the  committee  shall  elect 
between  those  having  an  equal  number  of  votes.  The  object 
of  this  is  to  give  efiPect  to  the  election,  and  is  a  mere  mode  of 
determining  the  result.  That  result  may  depend  upon  a 
plurality  or  a  majority  of  all  the  votes  cast,  or  the  action  of 
the  committee  as  to  the  effect  of  a  tie,  according  to  the  char- 
acter of  the  legislation.  In  this  case,  the  course  of  legislation 
is  such  as  to  give  a  result  to  the  election.  Cox,  therefore,, 
was  legally  elected. 


NOVEMBER  TERM,  1873.  397 

State,  Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township. 

The  remaining  question  affects  the  legality  of  the  action  of 
the  board,  and  that  is  attacked  on  the  ground  of  the  interest 
of  Hammer,  one  of  the  commissioners  in  the  assessment  of 
damages  and  benefits.  Abry,  one  of  the  prosecutors,  was  an 
owner  of  lands  through  which  the  road  was  laid.  He  was 
allowed  nine  hundred  dollars  for  his  damages,  and  assessed 
six  hundred  dollars  for  benefits.  Hammer,  the  commissioner, 
was  assessed  for  benefits  fifty  dollars.  Hammer  was  directly 
interested  in  both  the  assessment  for  damages  and  benefits. 
In  the  former,  in  order  that  they  might  be  as  low  as  possible, 
so  as  to  make  less  benefits  to  be  assessed,  and  in  the  latter, 
that  his  neighbors  should  pay  more  than  he,  and  his  assess- 
ment be  lower  accordingly.  The  fact  of  his  interest  is 
undoubted;  what  then  is  the  effect  of  it?  To  make  assess- 
ments for  improvements  of  this  kind,  requires  action  of  a 
judicial  nature.  State  v.  Newark,  1  Dutcher  405.  And  one 
of  the  fundamental  maxims  of  the  law  is,  that  no  man  can  be 
a  judge  in  his  own  cause.  So  tenaciously  was  this  adhered 
to  in  our  state,  that  the  Court  of  Errors,  in  Peek  v.  Free- 
holders of  Essex,  1  Zab.  656,  held  that  the  then  Chief  Justice 
of  this  court  was  disqualified  from  sitting  in  a  cause,  by 
reason  of  his  being  an  inhabitant,  freeholder  and  tax  payer, 
in  the  county  of  Essex,  and  therefore  interested  in  a  suit  to 
recover  money  for  the  county.  Since  then,  the  act  of  Feb- 
ruary 28th,  1849,  {Nix.  Dig.  441,)*  was  passed  to  remove  that 
disqualification.  The  interest  of  Hammer  was  not  as  a  gene- 
ral tax  payer,  but  peculiarly  personal,  for  although  the  power 
to  assess  for  benefits  has  its  origin  in  the  great  taxing  power 
of  sovereignty,  still  the  principle  upon  which  it  is  founded, 
is  that  each  person  should  pay  for  the  peculiar  benefit 
received  by  his  property  from  the  improvement,  and  that  it 
would  be  an  injustice  to  the  public  to  compel  them  to  pay  for 
advantages  to  individual  lands.  State  v.  Fuller,  5  Vroom 
227.  Another  principle  is,  that  local  improvements  of  the 
nature  of  this  before  us,  are  presumed  to  benefit  lauds  in  their 
immediate  locality,   to  the  extent,  generally,  of  their   cost, 

*iiei;.,p.  889,  I  264. 

Vol..  VII.  25 


398  XEW  JERSEY  SUPREME  COURT. 

State,  Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township, 

although  the  court  will  examine  to  see  that  private  property 
is  not  taken  for  public  use,  without  compensation.  5  Vroom 
227. 

The  very  nature,  then,  of  an  assessment  for  benefits,  makes 
it,  in  eflPect,  but  an  adjustment  among  certain  land  owners  of 
their  liabilities  to  pay  for  advantages  individually  received, 
and  any  one  familiar  with  the  workings  of  municipal 
machinery  in  localities  where  the  spirit  of  modern  improve- 
ment runs  rampant,  knows  full  well  that  private  interests, 
affected  by  this  mode  of  payment  for  improvements,  are  not  to 
be  considered  as  too  inconsiderable  to  operate  upon  the  judg- 
ment of  those  interested.  This  interest  is  very  different  from 
that  of  a  mere  general  tax  payer,  which,  in  some  cases,  from , 
the  necessity  of  things,  might  be  disregarded,  or,  if  not  so, 
could  be  relieved  against  by  the  legislature.  It  is  unneces- 
eary  to  refer  to  cases  to  establish  the  disqualification  of  Inter- 
est for  judicial  action,  as  it  has  its  origin  in  the  fundamental 
nature  of  laws.  A  few  references,  however,  may  not  be  amiss. 
£room's  Legal  Maxims  109 ;  Peck  v.  Freeholders  of  Essex,  1 
Zab.  656;  Com.  v.  Ryan,  5  Mass.  90;  Com.  v.  Reed,  1  Gray 
472;  Pearce  v.  Atwood,  13  Mass.  324;  Schroeder  v.  Ehlers, 
2  Vroom  50 ;  Com.  v.  McLane,  4  Gray  427 ;  Dimes  v. 
Prop'rs  Grand  Junct.  Canal,  3  H.  L.  C.  759;  Washington 
Ins.  Co.  V.  Price,  Hopk.  Ch.  2 ;  Cooley^s  Const.  Lim.  410. 

The  effect,  also,  of  this  interest  is  not  confined  alone  to  the 
person  interested,  for  it  is  well  settled  that  the  infection 
spreads  so  that  the  action  of  the  whole  body  is  voidable,  if 
the  party  interested  took  part  in  it,  and  even  if  there  was  a 
majority  left  witliout  his  vote.  This,  of  course,  has  no  appli- 
cation to  mere  formal  acts,  or  where  there  has  been  a  consent 
that  a  person  interested  should  act.  Broom  84,  Cooky  413 
and  cases  there  cited.  The  court  wnll  not  enter  into  any  ex- 
amination to  find  out  what  influence  the  disqualified  one  may 
have  exerted  upon  those  with  whom  he  acted.  That  there 
may  be  no  misunderstanding,  it  is  well  to  state  that  the 
action  of  an  interested  judge  is  not  void,  but  voidable  only. 
That  was  settled  in  the  great  case  of  Dimes  v.  Grand  Junc- 
tion Canal,  3  H.  L.  C.  748. 


NOVEMBER  TERM,  1873.  399 

State,  Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township. 

A  majority  of  these  commissioners  can  form  the  board  and 
perform  its  duties,  {Lmvs,  1872,  §  4,  p.  831,)  and  tliree  of 
the  five  have  signed  this  return,  but  with  them  is  Hammer, 
who  was  interested.  It  is  the  duty  of  the  court,  therefore, 
to  set  aside  the  whole  proceedings,  unless  they  can  be  sustained 
on  other  grounds,  and  those  as  presented  are  two,  one  of  them 
the  plea  of  necessity,  the  other  an  act  of  the  legislature. 

1.  As  to  necessity :  In  this  case.  Hammer  need  not  have 
acted,  as  there  were  three  without  him,  but  inasmuch  as 
another  of  four  kindred  cases,  of  which  this  is  one,  involves 
this  question  of  necessity,  where  two  of  the  four  commission- 
ers are  interested,  it  will  now  be  met  and  be  applicable  to  that 
<;ase.  It  is  said,  that  all  power  being  lodged  in  these  commis- 
sioners to  lay  out  roads  in  Cranford  township,  none  could  be 
laid  if  it  happened  that  a  majority  of  them  were  interested, 
unless  they  were  permitted  to  act.  To  justify  a  violation  of 
the  maxim,  there  should  be  an  imperative  reason  for  it,  in 
order  to  prevent  a  failure  of  justice,  and  in  determining  that, 
the  greatest  care  should  be  exercised,  for,  as  said  by  Chancellor 
Sandford,  in  Wash.  Ins.  Co.  v.  Price,  Hopkins  2,  on  the 
question  of  his  sitting  as  Chancellor,  when  he  was  a  stock- 
holder in  the  company,  "a  failure  of  justice  may  take  place, 
if  he  should  not  act,  as  it  also  may  occur  if  he  should  decide 
his  own  cause." 

In  3  House  of  Lords  Cases  759,  it  was  held,  that  although 
the  Lord  Chancellor  was  interested  as  a  stockholder  in  a  cause, 
yet  there  was  a  necessity,  under  an  act  of  parliament,  for  him 
to  sign  the  decree  of  the  Vice  Chancellor  in  order  to  an  enroll- 
ment, and  the  enrollment  being  necessary  to  an  appeal,  and 
Baron  Parke,  in  that  same  case,  refers  to  a  case  in  The  Year 
Books,  8  Hen.  6,  19,  where  it  was  held  that  it  was  no 
objection  to  the  jurisdiction  of  the  Common  Pleas,  that  an 
action  was  brought  against  all  the  judges,  in  a  matter  which 
could  only  be  brought  in  that  court.  See,  als'o.  Ranger  v. 
Great  Western  R.  Co.,  5  H.  L.  C.  72.  In  these  instances, 
there  was  an  extreme  necessity  to  permit  those  interested  to 


400  NEW  JERSEY  SUPREME  COURT. 

State,  Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township. 

act;  and  so  iu  Massachusetts,  [Commonwealth  v.  McLane,  4: 
Gray  428,)  the  court  state  an  exception  to  the  rule,  in  these 
words :  "  Where,  from  the  peculiar  circumstances  of  the  case, 
as  in  criminal  districts  having  by  law  but  one  tribunal,  or  one 
or  more  magistrates  alike  interested,  and  from  the  necessity  of 
the  case,  it  must  be  taken  that  the  statute  creating  the  tribunal 
had  virtually  declared  that  such  interest  should  not,  in  such 
cases,  oust  the  court  of  jurisdiction,  and  thus  wholly  defeat 
the  operation  of  the  law."  That  was  a  case  where  a  recogni- 
zance was  taken  before  a  justice  residing  in  the  town  to  which 
the  forfeiture  would  go,  and  where  the  magistrates  were  all 
alike  interested.  To  the  same  effect  are,  also,  other  cases 
referred  to  in  the  opinion  of  that  court.  In  that  case,  the  aid 
of  the  legislature,  by  force  of  the  enactment,  was  invoked  in 
addition  to  considerations  of  necessity  alone.  No  case  can,  I 
think,  be  found  where  there  has  not  been  a  very  peculiar  and 
emergent  necessity  to  justify  an  exception  to  the  rule.  How 
is  it  in  the  present  matter?  The  failure  here  would  only 
.leprive  the  township  of  a  road  which  the  inhabitants  could 
more  than  likely  get  along  without,  until  the  legislature  pro- 
vided for  the  difficulty,  or  until  the  disability  was  removed. 
I  have  known  a  whole  county  in  this  state  to  be  unable  to  lay 
out  a  new  road  for  a  year,  by  reason  of  the  failure  of  town- 
ships to  properly  elect  or  appoint  surveyors  of  the  highways, 
and  for  defective  oaths  of  those  elected,  and  I  judge  it  is 
no  uncommon  thing  in  some  parts  of  the  state  to  be  embar- 
rassed in  that  respect.  The  public,  generally,  do  not  suffer 
very  much,  for  awhile,  in  such  an  emergency. 

If  it  be  admitted  that  the  legislature  could  empower  inter- 
ested commissioners  to  make  the  assessment,  there  is  no  such 
necessity  here,  as  in  the  Massachusetts  cases,  as  would  justify 
the  court  in  saying  that  the  statute  creating  the  board  must  be 
taken  as  declaring  that  they  may  act,  if  the  road  could  not  be 
otherwise  laid.  That  conclusion  could  only  be  reached  when 
from  the  express  language  of  the  statute,  or  as  a  necessary 
implication  in  the  nature  of  things,  it  must  irresistibly  fol- 


NOVEMBER  TERM,  1873.  401 

State,  Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township. 

ow.  It  must  be  a  very  strong  necessity  where  the  interest  is 
otherwise  than  as  a  general  tax  payer  to  support  a  presumption 
that  the  legislature  intended  a  violation  of  the  well  known 
rule  of  law. 

There  was  no  legal  necessity  to  have  these  interested  com- 
missioners sit  in  judgment  on  their  own  cases. 

2.  The  other  ground  stated,  is  based  upon  an  act  of  the 
legislature  of  March  11th,  1873,  {Laws,  1873,  _p.  339,)  section 
five,  which  was  intended  to  correct  the  evil.  It  is  a  supple- 
ment to  the  Cranford  townsl)ip  act,  and  provides  that  "  when- 
ever heretofore,  or  hereafter,  a  majority  of  the  commissioners 
of  highways  signing  any  report,  were  or  shall  be  competent 
and  disinterested,  such  report  shall  not  be  considered  illegal 
in  consequence  of  any  disability  on  the  part  of  the  other  com- 
missioners." This  raises  the  question  of  the  power  of  the 
legislature  to  abrogate  that  maxim  of  the  law.  That  it  may 
be  done  where  the  interest  is  only  as  a  general  tax  payer,  I 
think  is  clear.  Such  is  the  course  of  legislation  in  this  state, 
and  such  is  the  effect  of  adjudication  here  and  elsewhere.  In 
Massachusetts,  there  are  several  cases  holding  that  view. 
Com.  V.  Ryan,  5  Mass.  91 ;  Hill  v.  Wells,  6  Pick  105 ;  Com. 
v.  Beed,  1  Gray  472 ;  Com.  v.  McLane,  4  Gray  427.  In 
this  state,  in  Parsell  v.  State,  1  Vroom  530,  the  Court  of  Errors 
held  that  the  courts  were  bound  to  appoint  surveyors  of  high- 
ways of  the  township  where  they  resided,  according  to  the  re- 
quirement of  the  road  act,  notwithstanding  they  were  tax 
payers  of  the  townsliip.  It  may  therefore  be  considered  as 
settled,  that  disqualifications  for  such  interests  as  are  common 
to  all  tax  payers,  may  be  removed  by  the  legislature.  Those 
interests  are  so  remote  and  minute,  that  as  a  fact  in  most  in- 
stances they  would  not  influence  the  judgment,  and  therefore, 
and  from  public  necessity,  it  may  well  be  left  to  the  legisla- 
ture to  determine  whether  they  should  not  be  disregarded. 

Without  that  power,  it  would  be  almost  if  not  impossible, 
in  the  practical  administration  of  affairs  in  some  cases,  to  do 
justice  to  the  public  or  to  individuals. 

But  the  interest  of  this   commissioner  was  of  a  different 


402         NE^^rJERSEY'SUPBEME  COURT. 

State,  Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township. 

character.  It  was  peculiar  a'nd  direct.  In  Schroeder  v.  Elders, 
2  Vroom  44,  the  present  Chief  Justice  inclined  to  the  opinioa 
that  the  rule  that  a  man  cannot  be  a  judge  in  his  own  case,  is 
so  fundamental  that  the  legislature  cannot  destroy  it,  and  his 
references  show  the  strong  tendency  of  the  English  courts  in 
the  same  direction,  as  respects  an  act  of  parliament.  Lord 
Coke  declared,  while  sitting  judicially,  that  "  even  an  act  of 
])arliament,  made  against  natural  equity,  as  to  make  a  man  a 
judge  in  his  own  case,  is  void  in  itself,  for  jura  ncduroe  sunt 
immutabUia,  and  they  are  leges  legum."  Hohart  87  a.  In 
England  the  courts  would  naturally  avoid  any  decision  affect- 
ing the  omnipotence  of  parliament,  and  seek  by  possible  con- 
struction to  show  an  intent  in  every  statute,  consistent  with, 
common  right  and  natural  justice.  That  latter  would  also  be 
the  duty  of  the  courts  here  if  it  could*  be  done  as  it  was  done 
in  Shroeder  v.  Ehlers.  But  the  question  cannot  now  be  dis- 
posed of  in  that  way.  It  must  be  distinctly  met.  Judge 
Cooley,  in  his  valuable  book,  says,  that  he  does  not  see,  apart 
from  the  exceptions  given,  "  how  the  legislature  can  have  any 
power  to  abolish  a  maxim  which  is  among  the  fundamentals  of 
judicial  authority.  The  people  indeed,  when  framing  their 
constitution  may  establish  so  great  an  anomaly,  but  if  the 
legislature  is  entrusted  with  apportioning  and  providing  for 
the  exercise  of  the  judicial  power,  we  cannot  undei^stand  them 
to  be  authorized,  in  the  execution  of  this  trust,  to  do  that 
which  has  7iever  been  recognized  as  being  within  the  province  of 
the  judicial  authority.  To  empower  one  party  to  a  controversy 
to  decide  it  for  himself,  is  not  within  the  legislative  authority; 
because  it  is  not  the  establishment  of  any  rule  of  action  or  de- 
cision, but  is  a  placing  of  tlie  other  party,  so  far  as  that  contro- 
versy is  concerned,  out  of  the  protection  of  the  law,  and  sub- 
mitting him  to  the  control  of  one  whose  interest  it  will  be  to 
decide  arbitrarily  and  unjustly."  Const.  Lim.  412 ;  see  also 
on  the  same  subject,  Ames  v.  Port  Huron  Co.,  11  3IiGh.  139. 
It  seems  to  me  that  it  cannot  rationally  be  disputed  that 
there  exist  certain  legislative  powers  outside  of  written  con- 


NOVEMBER  TERM,  1873.  403 

State,  Winans  et  al.,  Pros.,  v.  Crane,  Collector  of  Cranford  Township. 

stitutions  and  fundamental  to  the  due  exercise  of  sovereignty, 
and  also  certain  legislative  restrictions  for  the  protection  of 
the  property  of  the  people,  alike  fundamental.  An  instance 
of  power,  is  that  of  the  taking  of  private  property  for  public 
use  upon  compensation,  and  it  does  not  depend  upon  any  con- 
stitution. It  is  an  attribute  of  sovereignty.  Smnickson  v. 
Johnson,  2  Harr.  145.  An  instance  of  restriction  is,  that 
private  property  cannot  be  taken  for  private  use.  The  legis- 
lature cannot  pass  an  act  to  take  the  land  of  one  man  and 
give  it  to  another.  That  prohibition  is  not  in  the  constitu- 
tion, yet  it  lies  deep  in  the  fundamental  nature  of  our  govern- 
ment, which  is  intended,  among  other  things,  to  secure  the 
natural  and  inalienable  rights  of  property.  There  are  certain 
great  principles  of  justice  that  the  people  have  not  parted  with 
to  their  legislatures,  and  which  cannot  be  violated  without 
disregarding  and  defying  the  essential  nature  of  our  govern- 
ment and  system  of  laws. 

The  maxim  under  consideration  has  always  been  regarded 
in  English  jurisprudence,  as  elementary  and  fundamental  in 
judicial  action,  [Coke  Lit.,  §  212,  Broom  109,)  and,  I  think, 
can  no  more  be  materially  invaded  by  the  legislature,  than  it 
could  pass  an  act  that  a  judge  might  decide  according  to  lot,  or 
for  a  party  who  should  give  iiim  the  most  money.  The  Chief 
Justice,  in  Schroeder  v.  Ehlers,  says,  "  that  a  person  cannot  be 
a  judge  in  his  own  case,  has  ever  been  regarded  as  one  of  the 
fundamental  maxims  of  the  law  of  nature ; "  also,  that  the 
injustice  of  allowing  it,  is  intuitive  in  the  human  mind.  In 
my  judgment,  the  legislature  is  impotent  to  break  down  this 
great  barrier  to  tyranny  and  fraud.  The  power  of  the  legis- 
lature has  been  seriously  questioned  even  in  removing  disa- 
bilities for  a  common  interest,  and  the  fair  implication  of  the 
cases  is,  considering  the  ground  upon  which  it  is  sustained, 
the  remoteness  and  smallness  of  the  interest,  that  it  does  not 
reach  beyond  interests  of  a  general  nature.  (See  cases  refer- 
red to.)  The  maxim  is  inherent  in,  and  a  part  of  the  nature 
of  judicial  action,  and  although  in  many  matters  the  legisla- 
ture may  provide  for  the  exercise  of  judicial  functions,  and 


404  NEW  JERSEY  SUPREME  COURT. 

State,  Cahill,  Pros.,  v.  Commissioners,  &c.,  of  Cranford  Township. 

designate  the  persons  who  shall  exerwse  them,  yet  it  cannot, 
in  so  doing,  lose  sight  of  the  essential  character  of  judicial 
action,  and  authorize  or  sanction  a  judgment  through  instru- 
mentalities contrary  to  the  innate  and  universally  recognized 
sense  of  natural  justice.  In  such  a  case,  the  power  conferred 
would  not  be  judicial,  it  would  be  tyrannical. 

The  legislature  could  not  have  directly  authorized  these 
commissioners,  if  interested,  to  decide  their  own  cases,  and 
certainly  a  retrospective  act  of  the  same  character  ought  not 
to  be  sustained.  But  the  act  in  question  seeks  to  cure  the 
taint  by  expunging  the  objectionable  commissioners  from  the 
board,  and  giving  effect  thereby  to  the  action  of  the  remain- 
ing three.  In  other  words,  the  object  is  to  separate  the  action 
of  one  commissioner  from  the  others  after  the  mischief,  and  to 
abridge  the  influence  that  his  interest  would  otherwise  have. 
That  will  not  help  it,  for  the  law  does  not  sever  the  action 
that  is  tainted.  The  whole  is  affected.  It  is  an  entirety.  A 
majority  of  the  board  could  have  legally  acted  without  Ham- 
mer, but  he  having  taken  part  in  the  proceedings,  the  whole 
was  voidable  on  proper  application.  To  sanction  an  act  of 
the  legislature,  ratifying  it  in  such  a  mode,  would  be  indi- 
rectly crippling  the  natural  force  and  effect  of  the  maxim, 
and  depriving  the  prosecutors  of  its  reasonable  protection. 

The  effort  to  cure  the  difficulty  was  futile,  and  the  return, 
with  all  subsequent  proceedings,  must  be  set  aside. 


THE  STATE,  CAHILL,  PEOSECUTOR,  v.  THE  BOARD  OF  COM- 
MISSIONERS OF  HIGHWAYS,  CRANFORD  TOWNSHIP. 

Bedle,  J.  This  case  was  argued  with  the  State,  Winans 
and  Abry  v.  Crane,  Collector,  but  in  it  an  additional  question 
is  raised,  as  to  the  right  of  Cahill  to  prosecute  this  certiorari. 
It  is  claimed  by  evidence  aliunde  the  proceedings  of  the  com- 
missioners, that  Cahill's  land  taken  for  the  street,  had  been 
dedicated  by  him  to  the  public,  and,  therefore,  that  he  was 
not  entitled  to  any  damages,  or  if  any,  only  nominal.     The 


NOVEMBER  TERM,  1873.  405 

State,  Cahill,  Pros.,  v.  Commissioners,  &c.,  of  Cranford  Township. 

damages  and  benefits  were  each  assessed  at  $1000,  and  these 
amounts  being  neutralized,  it  is  said  that  the  result,  as  to 
Cahill,  is  as  it  should  be. 

Elmeudorf,  one  of  the  commissioners  who  signed  the  return, 
is  an  owner  of  land  through  which  the  street  was  laid,  so  also 
is  Cahill.  Whether  Cahill  had  burthened  his  land  with  a 
public  street,  was  a  question  to  be  determined  by  the  commis- 
sioners, before  the  damages  to  Cahill  could  be  fixed.  The 
amount  essentially  depended  upon  it,  and  in  it  the  other  land 
owners,  who  were  liable  to  pay  for  benefits,  were  interested. 
It  was  a  very  important  matter  to  Cahill,  and  it  cannot  legally 
be  said,  that  because  the  interested  commissioner  decided 
rigiitly,  the  prosecutor  must  submit.  The  whole  action, 
whether  right  or  wrong,  is  tainted. 

But  the  prosecutor  and  Elmendorf  were  also  each  interested 
in  the  question,  whether,  if  there  had  been  a  dedication,  the 
street  was  laid  entirely  within  the  lines  of  dedication?  That 
would  affect  the  amount  of  damages  to  Cahill,  and  corres- 
pondingly the  benefits  to  other  laud  owners.  Further,  the 
street,  if  dedicated,  had  been  dedicated  to  the  width  of  eighty 
feet,  whereas  the  street,  as  laid,  was  only  sixty  feet.  Practi- 
cally speaking,  then,  these  proceedings  amounted  to  an  altera- 
tion of  the  street  as  dedicated  (if  dedicated).  Sixty  feet  would 
take  less  of  Elmendorf 's  land  than  eighty  feet.  Sixty  feet 
might  seriously  interfere  with  Cahill's  plan  of  improvement, 
and  his  interest,  while  the  same  width  might  suit  Elmendorf 
much  better  than  the  greater  width.  At  any  rate,  each  was 
interested  in  the  question  of  width. 

For  the  reason  stated,  without  any  other,  Cahill's  standing 
as  a  prosecutor  is,  to  my  mind,  clear. 

The  case  is  within  the  opinion  referred  to,  and  all  the  pro- 
<;eedings  must  be  set  aside. 

Cited  in  Maxwell  v.  Ooetschius,  11  Vr.  383;  Lister  y.  Newark  Plank 
Road  Co.,  9  Stem.  Eq.  477. 


406  NEW  JERSEY  SUPREME  COURT. 


Halsey  v.  Paulison. 


HALSEY,  ADMINISTRATOR  OF  AYRES,  DECEASED,  v.  PAU- 
LISON. 

1.  Where  a  case  is  taken  to  the  circuit,  and  a  reference  there  ordered 
under  sections  252  and  201  of  the  practice  act,  (Nix.  Big.  754,  743,) 
the  proper  place  to  enter  a  dissent  is  in  the  circuit  minutes.  After 
that,  the  fact  of  the  reference  and  the  dissent,  together  with  the 
findings  of  the  referee,  should  be  embodied  in  the  postea,  and  it, 
together  with  the  original  report,  returned  to  this  court. 

2.  A  confirmation  can  be  moved  for  at  bar,  subject  to  a  demand  for  a 
trial  by  jury  at  the  same  term  in  which  the  report  is  filed,  or  such 
motion  can  be  made  before  the  circuit  justice,  if  no  demand  for  a  trial 
by  jury  has  been  made. 

3.  The  demand  for  a  trial  by  jury  must  be  actually  made  of  the  court  and 
not  by  a  mere  entry  in  the  minutes. 

4.  The  report  of  the  referee  is  not  to  be  treated  as  filed,  in  the  contem- 
plation of  the  statute,  until  the  postea  is  also  filed. 


In  debt.     On  reference. 
On  motion  for  venire,  &c. 
For  the  motion,  H.  C.  Pitney. 

The  opinion  of  the  court  was  delivered  by 

Bedle,  J.  This  case  was  taken  to  the  circuit,  and  a  refer- 
ence there  ordered  under  sections  252  and  201  of  the  practice 
act.  Nix.  Dig.  754,  743.*  The  proper  place  to  enter  the  dissent 
was  in  the  circuit  minutes.  After  that,  the  fact  of  the  refer- 
ence and  the  dissent,  together  with  the  findings  of  the  referee, 
should  be  embodied  in  the  postea,  and  it,  together  with  the 
original  report,  returned  to  this  court.  The  party  desiring  a 
confirmation  can  then  move  for  it  at  bar,  subject  to  a  demand 
for  a  trial  by  jury  at  the  same  term  in  which  the  report  is 
filed,  or  such  motion  could  be  made  in  vacation  before  the 
circuit  justice,  if  no  demand  for  a  jury  trial  has  been  made. 
If,  as  is  stated  in  this  case,  no  order  for  confirmation  is  desired 

*Rev.,  pp.  876,  879,  U  177,  179. 


NOVEMBER  TERM,  1873.  407 

Messenger  et  al.  v.  Pennsylvania  R.  R.  Co. 

by  either  party,  the  postea  and  report  can  be  filed,  and  each 
party  demand  a  trial  by  jury,  if  he  has  dissented. 

The  demand  should  be  actually  made  of  the  court,  and  not 
by  a  mere  entiy  in  the  minutes.  The  report  is  not  to  be 
treated  as  filed,  in  the  contemplation  of  the  statute,  until  the 
postea  is  also  filed.  If  exceptions  are  filed  and  the  demand 
made,  the  case  must  be  again  taken  to  the  circuit  for  trial 
upon  the  issues  raised  by  the  exceptions. 

The  plaintiff  not  having  as  yet  filed  his  postea,  is  not  en- 
titled to  his  venire  uoon  this  motion. 


EVERETT  MESSENGER  AND  OTHERS  v.  THE  PENNSYLVA- 
NIA  RAILROAD  COMPANY. 


An  agreement  by  a  railroad  company  to  carry  goods  for  certain  per- 
sons, at  a  cheaper  rate  than  they  will  carry  under  the  same  condi- 
tions for  others,  is  void  as  creating  an  illegal  preference. 


In  case.     On  demurrer  to  declaration. 

The  declaration  sets  out,  (first  and  second  counts,)  that  the 
plaintiffs  were  large  sliippers  of  live  hogs  from  Chicago  and 
Pittsburg  to  Jersey  City,  and  that  the  defendants,  in  the  city 
of  New  York,  on  the  1st  of  December,  1870,  agreed  with 
the  plaintiffs,  that  if  they  would  ship  by  them,  they  would, 
on  and  after  January  1st,  1871,  transport  their  hogs  from 
Chicago  and  from  Pittsburg,  to  Jersey  City,  at  the  regular 
rates,  allowing  them  a  drawback  of  twenty  cents  per  hundred 
pounds  upon  all  hogs  shipped  from  Chicago,  and  ten  cents 
})er  hundred  upon  those  shipped  from  Pittsburg ;  and  fur- 
tlier,  shouid  the  defendants,  after  January  1st,  1871,  trans- 
port the  same  description  of  freight  for  others,  between  the 
same  points,  except  seven  parties  named,  at  less  than  their 


408  NEW  JERSEY  SUPREME  COURT. 


Messenger  et  al.  v.  Penusylvauia  R.  R.  Co. 


regular  rates,  or  should  allow  such  others  a  drawback,  then 
they  should  allow  the  plaintiffs  such  further  drawback  as 
would  bring  their  freights  twenty  cents  per  hundred  and  ten 
cents  per  hundred  lower  that  the  lowest. 

The  plaintiffs  aver  that  they  shipped  twelve  millions  of 
pounds  from  Chicago,  and  a  like  amount  from  Pittsburg  to 
Jersey  City  by  the  defendants'  road ;  that  they  paid  the 
regular  rates,  and  have  received  the  twenty  cents  and  ten 
cents  drawback,  but  the  defendants,  during  the  same  year, 
carried  for  other  parties  than  those  excepted  in  the  contract, 
allowing  such  parties  the  same  drawback,  or  making  a  reduc- 
tion in  the  rates  equal  to  the  drawback,  whereby  the  plain- 
tiffs became  entitled  to  have  a  further  drawback  of  twenty 
cents  and  ten  cents  per  hundred. 

T.'ie  third  and  fourth  counts  set  out  like  contracts,  with 
like  exceptions,  by  which  the  defendants  agree  to  pay  draw- 
backs equal  to  twenty  cents  and  ten  cents  from  the  regular 
rates ;  and  further,  that  if  either  the  defendants,  the  New 
York  Central  Railroad  Company,  or  the  Erie  Railway  Com- 
pany, should  rebate  for  other  parties  from  the  regular  rates, 
or  should  give  them  drawbacks,  then  the  defendants  should 
allow  the  plaintiffs  such  further  drawbacks  as  would  make 
their  rates  twenty  cents  and  ten  cents  lower  that  the  lowest. 

The  fifth  count  sets  out  like  contracts,  made  with  the  de- 
fendants, the  New  York  Central  Railroad  Company  and  the 
Erie  Railway  Company,  by  which  they  severally  agreed,  for 
like  shipments,  to  give  the  plaintiffs  like  drawbacks,  and 
with  the  same  exception  as  to  other  parties,  to  make  the 
drawbacks  twenty  cents  and  ten  cents  per  hundred  lower 
than  the  lowest. 

Argued  at  June  Term,  1873,  before  Beasley,  Chief  Jus- 
-tice,  and  Justices  Depue  and  Van  Syckel. 

For  the  defendants,  /.  W.  Scudder,  § 

For  the  plaintiffs,  /.  Linn. 


NOVEMBER  TERM,  1873.  409 

Messenger  et  al.  v.  Pennsylvania  R.  R.  Co. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  Pennsylvania  Railroad 
Company,  who  are  the  defendants  in  this  action,  agreed  with 
the  plaintiffs  to  carry  certain  merchandise  for  them,  between 
certain  termini,  at  a  fixed  rate  less  than  they  should  carry 
between  the  same  points  for  any  other  person.  The  allega- 
gatiou  is,  that  goods  have  been  carried  for  other  parties  at  a 
certain  rate  below  what  the  goods  of  the  plaintiffs  have  been 
carried,  and  this  suit  is  to  enforce  the  foregoing  stipulation. 
The  question  is,  whether  the  agreement  thus  forming  the- 
foundation  of  the  suit  is  legal. 

There  can  be  no  doubt  that  an  agreement  of  this  kind  is 
calculated  to  give  an  important  advantage  to  one  dealer  over 
other  dealers,  and  it  is  equally  clear,  that  if  the  power  to  make 
the  present  engagement  exists,  many  branches  of  business  are 
at  the  mercy  of  these  companies.  A  merchant  who  can  trans- 
port his  wares  to  market  at  a  less  cost  than  his  rivals,  will 
soon  acquire,  by  underselling  them,  a  practical  monopoly  of 
the  business;  and  it  is  obvious,  that  this  result  can  often  be 
brought  about  if  the  rule  is,  as-  the  plaintiffs  contend  that  it 
is,  that  these  bargains  giving  preferences  can  be  made.  A 
railroad  is  not,  in  general,  subject  to  much  competition  in  the 
business  between  its  termini ;  the  difficulty  in  getting  a 
charter  and  the  immense  expense  in  building  and  equipping  a 
road,  leaves  it,  in  the  main,  without  a  rival  in  the  field  of  its 
operation  ;  and  the  consequence  is,  the  trader  who  can  trans- 
mit his  merchandise  over  it  on  terms  more  favorable  than 
others  can  obtain,  is  in  a  fair  way  of  ruling  the  market.  The 
tendency  of  such  compacts  is  adverse  to  the  public  welfare, 
which  is  materially  dependent  on  commercial  competition  and 
the  absence  of  monopolies.  Consequently,  the  inquiry  is  of 
moment,  whether  such  compacts  may  be  made.  I  have  ex- 
amined the  cases,  and  none  that  I  have  seen  is,  in  all  respects, 
in  point,  so  that  the  problem  is  to  be  solved  by  a  recurrence 
to  t-he  general  principles  of  the  law. 

The  defendants  are  common  carriers,  and  it  is  contended 


410  NEW  JERSEY  SUPREME  COURT. 

Messenger  et  al.  v.  Pennsylvania  R.  R.  Co. 

that  bailees  of  that  character  cannot  give  a  preference  in  the 
•exercise  of  their  calling,  to  one  dealer  over  another.  It  can- 
not be  denied,  that  at  the  common  law,  every  person,  under 
identical  conditions,  had  an  equal  right  to  the  services  of  their 
commercial  agents.  It  was  one  of  the  primary  obligations  of 
the  common  carrier  to  receive  and  carry  all  goods  offered  for 
transportion,  upon  receiving  a  reasonable  hire.  If  he  refused 
the  offer  of  such  goods,  he  was  liable  to  an  action,  unless  he 
could  show  a  reasonable  ground  for  his  refusal.  Thus,  in  the 
very  foundation  and  substance  of  the  business,  there  was  in- 
herent a  rule  which  excluded  a  preference  of  one  consignor  of 
■goods  over  another.  The  duty  to  receive  and  carry  was  due 
to  every  member  of  the  community,  and  in  an  equal  measure 
to  each.  Nothing  can  be  clearer  than  that  under  the  preva- 
lence of  this  principle,  a  common  carrier  could  not  agree  to 
<;arry  one  man's  goods  in  preference  to  those  of  another. 

It  is  important  to  remark,  that  this  obligation  of  this  class 
of  bailees  is  always  said  to  arise  out  of  the  character  of  the 
business.  Sir  William  Jones,  importing  the  expression  from 
the  older  reports,  declares  that  this,  as  well  as  the  other  pecu- 
liar responsibilities  of  the  common  carrier,  is  founded  in  the 
-consideration  that  the  calling  is  a  public  employment.  Indeed, 
the  compulsion  to  serve  all  that  apply  could  be  justified  in 
flo  other  way,  as  the  rigiit  to  accept  or  reject  an  offer  of  busi- 
ness is  necessarily  incident  to  all  private  traffic. 

Recognizing  this  as  the  settled  doctrine,  I  am  not  able  to 
see  how  it  can  be  admissible  for  a  common  carrier  to  demand 
a  different  hire  from  various  persons  for  an  identical  kind  of 
service,  under  identical  conditions.  Such  partiality  is  legiti- 
mate in  private  business,  but  how  can  it  square  with  the  obli- 
gations of  a  public  employment?  A  person  having  a  public 
duty  to  discharge,  is  undoubtedly  bound  to  exercise  such 
office  for  the  equal  benefit  of  all,  and,  therefore,  to  permit 
the  common  carrier  to  charge  various  prices,  according  to  the 
person  with  whom  he  deals,  for  the  same  services,  is  to  forget 
that  he  owes  a  duty  to  the  community.     If  he  exacts  differ- 


NOVEMBER  TERM,  1873.  411 

Messenger  et  al.  v.  Pennsylvania  B.  R.  Co. 

ent  rates  for  the  carriage  of  goods  of  the  same  kind,  between 
the  same  points,  he  violates,  as  plainly,  though  it  may  be  not 
in  the  same  degree,  the  principle  of  public  policy  which,  in 
his  own  dispute,  converts  his  business  into  a  public  employ- 
ment. The  law  that  forbids  him  to  make  any  discrimination 
in  favor  of  the  goods  of  A  over  the  goods  of  B,  when  the 
goods  of  both  are  tendered  for  carriage,  must,  it  seems  to  me, 
necessarily  forbid  any  discrimination  with  respect  to  the  rate  of 
pay  for  the  carriage.  I  can  see  no  reason  why,  under  legal 
rules,  perfect  equality  to  all  persons  should  he  exacted  in  the 
dealings  of  the  common  carrier,  except  with  regard  to  the 
amount  of  compensation  for  his  services.  The  rule  that  the 
carrier  shall  receive  all  the  goods  tendered,  loses  half  its 
value,  as  a  politic  regulation,  if  the  cost  of  transportation  can 
be  graduated  by  special  agreement  so  as  to  favor  one  party  at 
the  expense  of  others.  Nor  would  this  defect  in  the  law,  if 
it  existed,  be  remedied  by  the  principle  which  compels  the 
carrier  to  take  a  reasonable  hire  for  his  labor,  because,  if  the 
rate  charged  by  him  to  one  person  might  be  deemed  reasona- 
ble, by  charging  a  lesser  price  to  another  for  similar  services, 
he  disturbs  that  equality  of  rights  among  his  employers  which 
it  is  the  endeavor  of  the  law  to  effect.  Indeed,  when  a 
charge  is  made  to  one  person,  and  a  lesser  charge,  for  precisely 
the  same  offices,  to  another,  I  think  it  should  be  held  that  the 
higher  charge  is  not  reasonable;  a  presumption  which  would 
cut  up  by  the  roots  the  present  agreement,  as,  by  the  operation 
of  this  rule,  it  would  be  a  promise  founded  on  the  supposition 
that  some  other  person  is  to  be  charged  more  than  the  law 
warrants. 

From  these  considerations,  it  seems  to  me,  that  testing  the 
duties  of  this  class  of  bailees  by  the  standard  of  the  ancient 
principles  of  the  law,  the  agreement  now  under  examination 
cannot  be  sanctioned.  This  is  the  sense  in  which  Mr.  Smitli 
understands  the  common  law  rule.  In  his  Leading  Cases,  p. 
174,  speaking  of  the  liabilities  of  carriers,  he  says:  "The  hire 
charged  must  be  no  more  than  a  reasonable  remuneration  to 
the  carrier,  and,  consequently,  not  more  to   one  (though   a 


412  NEW  JERSEY  SUPREME  COURT. 


Messenger  et  al.  v.  Pennsylvania  E.  R.  Co. 


rival  carrier)  than  to  anotlier,  for  the  same  service."  I  am 
aware,  that  in  tlie  case  of  Baxendale  v.  The  Eastern  Counties 
Railway,  4  C.  B.  [N.  S.)  81,  this  definition  of  the  common 
law  rule  was  criticised  by  one  of  the  judges,  but  the  subject 
was  not  important  in  that  case,  and  was  not  discussed,  and 
the  expression  of  opinion  with  respect  to  it  was  entirely  cur- 
sory. Indeed,  the  whole  question  has  become  of  no  moment 
in  the  English  law,  as  the  subject  is  specifically  regulated  by 
the  statute,  17  and  18  Vict.,ch.  31,  which  prohibits  the  giving 
"  of  any  undue  or  unreasonable  preference  or  advantage  to, 
or  in  favor  of  any  particular  person  or  company,  or  any  par- 
ticular description  of  traffic,  in  any  respect  whatever."  The 
date  of  this  act  is  1854,  and  since  that  time  the  decisions  of 
the  courts  of  Westminster  have,  when  discussing  this  class  of 
the  responsibilities  of  common  carriers,  been  devoted-  to  its 
exposition.  But  the  courts  of  Pennsylvania  have  repeatedly 
declared  that  this  act  was  but  declaratory  of  the  doctrine  of 
the  common  law.  This  was  so  held  in  the  case  o^  Sanford  v. 
The  Catawissa,  Williamsport  and  Erie  Railroad  O?.,  24  Penna. 
378,  in  which  an  agreement  by  a  railway  company  to  give  an 
express  company  the  exclusive  right  to  carry  goods  in  certain 
trains,  was  pronounced  to  be  illegal.  la  a  more  recent  de- 
cision, Mr.  Justice  Strong  refers  to  this  case  with  approval, 
and  says  that  the  special  provisions  which  are  sometimes  in- 
serted in  railroad  charters,  in  restraint  of  undue  preferences, 
are  "  but  declaratory  of  what  the  common  law  now  is."  This 
is  the  view  which,  for  the  reasons  already  given,  I  deem  cor- 
rect. 

But  even  if  this  result  could  not  be  reached  by  fair  induc- 
tion from  the  ancient  principles  which  regulate  the  relation- 
ship between  this  class  of  bailees  and  their  employers,  I 
should  still  be  of  opinion  that  we  would  be  necessarily  led  to 
it  by  another  consideration. 

I  have  insisted  that  a  common  carrier  Was  to  be  regarded, 
to  some  extent,  at  least,  as  clothed  with  a  public  capacity, 
and  I  now  maintain,  that  even  if  this  theory  should  be  re- 
jected, and  thrown  out  of  the  argument,  still  the  defendants 


NOVEMBER  TERM,  1873.  *  413 


Messenger  et  al.  v.  Pennsylvania  E.  R.  Co. 


must  be  considered  as  invested  with  that  attribute.  In  my 
opinion,  a  railroad  company,  constituted  under  statutory 
authority,  is  not  only,  by  force  of  its  inherent  nature,  a  com- 
mon carrier,  as  was  held  in  the  case  of  Palmer  v.  Grand 
Junction  Railway,  4  M.  <&  IV.  749,  but  it  becomes  an  agent  of 
the  public  in  consequence  of  the  powers  conferred  upon  it. 
A  company  of  this  kind  is  invested  with  important  preroga- 
tive franchises,  among  which  are  the  rights  to  build  and  use 
a  railway,  and  to  charge  and  take  tolls  and  fares.  These 
prerogatives  are  grants  from  the  government,  and  public 
utility  is  the  consideration  for  them.  Although,  in  the  hands 
of  a  private  corporation,  they  are  still  sovereign  franchises, 
and  must  be  used  and  treated  as  such,  they  must  be  held  in 
trust  for  the  general  good.  If  they  had  remained  under  the 
control  of  the  state,  it  could  not  be  j^retended,  that  in  the 
exercise  of  them,  it  would  have  been  legitimate  to  favor  one 
citizen  at  the  expense  of  another.  If  a  state  should  build 
and  operate  a  railroad,  the  exclusion  of  everything  like  favor- 
itism with  respect  to  its  use,  would  seem  to  be  an  obligation 
that  could  not  be  disregarded  without  violating  natural 
equity  and  fundamental  principles.  And  it  seems  to  me  im- 
possible to  concede,  that  when  such  rights  as  these  are  handed 
over,  on  public  considerations,  to  a  compan)  of  individuals, 
such  rights  lose  their  essential  characteristics.  I  think  they  are, 
unalterably,  parts  of  the  supreme  authority,  and  in  whatso- 
ever hands  they  may  be  found,  they  must  be  considered  as 
such.  In  the  use  of  such  franchises,  all  citizens  have  an 
equal  interest  and  equal  rights,  and  all  must,  under  the  same 
circumstances,  be  treated  alike.  It  cannot  be  supposed  that 
it  was  the  legislative  intention,  when  such  privileges  were 
given,  that  they  were  to  be  used,  as  private  property,  at  the 
discretion  of  the  recipient,  but,  to  the  contrary  of  this,  I 
think  an  implied  condition  attaches  to  such  grants,  that  they 
are  to  be  held  as  a  quasi  public  trust  for  the  benefit,  at 
least  to  a  considerable  degree,  of  the  entire  community.  In 
their  very  nature  and  constitution,  as  I  view  this  question, 
these  companies  become,  in  certain  aspects,  public  agents,  and 
Vol.  VII.  26 


414  NEW  JERSEY  SUPREME  COURT. 

Messenger  et  al,  v.  Pennsylvania  R.  E.  Co. 

the  consequence  is,  they  must,  in  the  exercise  of  their  calling, 
observe  to  all  men  a  perfect  impartiality.  On  these  grounds, 
the  contract  now  in  suit  must  be  deemed  illegal  in  the  very 
particular  on  which  a  recovery  is  sought. 

The  result  is,  the  defendants  must  have  judgment  on  the 
demurrer. 

Cited  in  Union  Locomotive  and  Express  Co.  v.  Erie  Railway  Co.,  8  Vr.  23. 


CASES  AT  LAW 


DETERMINED   IN  THE 


COURT  OF  ERRORS  AND  APPEALS 

OF  THE 

STATE  OF  NEW  JERSEIY, 

AT  MARCH  TERM,  1872. 


ANN  MAEIA  BKAY,  PLAINTIFF  IN  ERROR,  v.  WILLIAM  S. 
TAYLOR,  DEFENDANT  IN  ERROR. 

The  rule  of  the  common  law  that  inheritances  shall  not  lineally  ascend, 
although  modified  so  as  to  let  in  the  father,  and  to  some  extent  the 
mother,  has  not  been  abolished  in  this  state,  and  therefore  a  grand 
mother  is  not  entitled,  by  virtue  of  the  sixth  section  of  the  statute  of 
descents,  to  inherit  lands  of  which  the  grandchild  died  seized. 


On  writ  of  error  to  Moumouth  Circuit. 

Declaration  in  covenant  on  deed  from  Ann  Maria  Bray,  the 
defendant  below,  to  William  S.  Taylor,  the  plaintiff,  dated 
March  1st,  1855,  which,  among  other  things,  contained  a 
covenant  that  she  was  seized  in  her  own  right  of  an  absolute 
and  indefeasible  estate  of  inheritance,  in  fee  simple  of  the 
premises  described  in  said  deed,  and  had  good  right,  full  power 
and  authority  in  the  law  to  convey  the  same — Breach,  that  she 
had  not  such  estate,  &c.,  and  had  not  authority  to  convey,  &c. 

Plea  negatives  the  breach  stated  in  the  declaration,  and 
alleges  that  Bray  had  such  estate,  &c.,  and  had  authority  to 
convey,  &c. 

415 


416       COURT  OF  ERRORS  AND  APPEALS. 

Bray  v.  Taylor. 

The  premises  described  in  said  deed  were  part  of  the  real 
estate  of  which  Daniel  Bray  died  seized,  being  part  of  his 
farm  on  which  he  lived. 

Daniel  Bray  executed  his  last  will  and  testament  in  due 
form  of  law,  dated  January  11th,  1841,  and  died  in  July, 
1841,  without  having  revoked  said  will. 

Among  other  devises  was  the  following,  viz. :  "  I  give  and 
bequeath  to  my  wife,  Ann  Maria  Bray,  the  use  and  occupation 
of  one-half  of  the  farm  on  which  I  now  live,  and  of  my  wood 
lot  near  Old  Woman's  Hill,  during  her  widowhood,  jointly 
with  my  daughter  Ann  Rebecca,  to  whom  I  bequeath  the  use 
and  occupation  of  the  other  half  of  the  said  farm  and  wood 
lot,  during  her  natural  life,  jointly  with  her  mother  during 
her  widowhood  ;  and  from  and  after  the  decease  or  second 
marriage  of  my  said  wife,  I  give  and  bequeath  the  said  farm 
and  wood  lot,  with  their  appurtenances,  to  my  said  daughter 
Ann  Rebecca,  her  heirs  and  assigns  forever,  subject,  however, 
to  the  right  of  dower  of  my  said  wife  therein." 

Ann  Maria  Bray,  since  the  death  of  her  husband,  Daniel 
Bray,  the  testator,  has  remained  unmarried. 

Ann  Rebecca  survived  her  father,  Daniel  Bray,  the  testator, 
and  married  Derrick  C.  Campbell. 

Ann  Rebecca  died  before  1855,  leaving  her  surviving,  a 
son,  Joseph  Campbell,  born  during  coverture. 

Joseph  Campbell,  son  of  Ann  Rebecca,  died  after  his  mother, 
and  previous  to  1855. 

Derrick  C.  Campbell,  the  father  of  Joseph,  and  husband  of 
Ann  Rebecca,  is  still  living.  The  premises  having  come  to 
Joseph  by  descent  from  his  mother,  the  father  was  not  entitled 
to  succeed  to  them,  but  they  descended  as  if  Joseph  had  sur- 
vived his  father.     Nix.  Big.  236,  §  3. 

Joseph  Campbell,  son  of  Ann  Rebecca  and  Derrick  C. 
Campbell,  had  no  brothers  or  sisters  of  the  whole  or  half 
blood. 

Ann  Rebecca  had  no  brothers  or  sisters  of  the  whole  blood, 
but  left  her  surviving  one  brother  of  the  half  blood,  and 
children  of  brothers  and  sisters  of  the  half  blood. 


MARCH  TERM,  1872.  417 

Bray  v.  Taylor. 

Derrick  C.  Campbell,  previous  to  1855,  released  to  Anu 
Maria  his  life  estate  in  the  premises,  described  in  the  deed 
given  by  defendant  to  plaintiff. 

It  was  agreed  by  counsel,  that  the  Circuit  Court  should 
certify  the  case  to  the  Supreme  Court  for  its  advisory  opinion, 
and  if,  upon  the  foregoing  statement,  the  court  should  be  of 
opinion  that  Ann  Maria  Bray,  the  defendant,  was,  at  the  date 
of  said  deed,  seized  in  fee  of  the  premises  described  in  the  deed, 
the  Circuit  Court  sliould  be  advised  to  give  judgment  for  the 
defendant ;  but  if  the  court  should  be  of  opinion  that  the  said 
Ann  Maria  Bray,  at  the  date  of  said  deed,  was  not  seized  of 
said  premises,  then  the  Circuit  Court  should  be  advised  to 
proceed  to  ascertain  the  plaintiflP^s  damages,  for  which  judg- 
ment should  be  given. 

After  argument  in  the  Supreme  Court,  a  certificate  was 
made  that  Mrs.  Bray  was  not,  at  the  date  of  the  said  deed, 
seized  in  fee  of  the  premises  described,  wliereupon,  in  accord- 
■ance  with  the  stipulation  of  counsel,  judgment  was  entered 
for  the  plaintiff  below,  on  which  judgment  error  was  brought. 

The  opinion  of  the  Supreme  Court  will  be  found  in  3 
Vroom  182. 

For  the  plaintiff  in  error,  J.  F.  Randolph. 
For  the  defendant,  M,  B.  Taylor. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  Joseph  Campbell  died  seized  of  the  premises 
in  question,  which  descended  to  him  from  his  mother,  Ann 
Rebecca  Campbell,  who  acquired  title  under  the  will  of  her 
father.  The  deceased  died  intestate,  without  issue,  and  with- 
out leaving  a  brother  or  sister  of  the  whole  or  half  blood,  or 
any  issue  of  such  brother  or  sister,  and  without  leaving  any 
father  or  mother  capable  of  inheriting  said  lands.  He  left 
surviving  him  an  uncle  of  the  half  blood,  and  the  children  of 
deceased  uncles  of  the  half  blood,  and  also  the  defendant,  Ann 
Maria  Bray,  who  was  his  grandmother. 


418       COURT  OF  ERRORS  AND  APPEALS. 


Bray  v.  Taylor. 


The  uncle  and  cousins  of  the  half  blood,  by  the  established 
rule  of  the  common  law,  were  excluded  from  the  inheritance ; 
neither  are  they  admitted  to  the  succession  by  the  fifth  section 
of  the  statute  of  descents,  which  extends  only  to  brothers  and 
sisters  of  the  half  blood,  and  their  issue,  and  does  not  embrace 
collaterals  of  a  more  remote  degree.  Den  v.  Stretch,  1  Souths 
182. 

The  plaintiff  in  error,  as  the  grandmother  of  the  deceased, 
was  in  the  next  degree  of  consanguinit}^,  whether  the  compu- 
tation of  the  degrees  is  made  by  the  method  of  the  civil  law, 
or  of  the  canon  law.  By  force  of  the  sixth  section  of  the 
statute,  she  is  entitled  to  succeed  to  the  inheritance,  unless  ex- 
cluded from  the  line  of  inheritance  by  the  first  canon  in  the 
common  law  system  of  descent,  which  prohibited  the  lineal 
ascent  of  lands,  and  escheated  the  lands  to  the  lord,  rather  than 
permit  those  who  were  the  lineal  ancestors  of  the  person  last 
seized,  to  inherit.     2  Bl.  Com.  208. 

The  sole  question  upon  which  this  case  hinges,  is  whether 
that  canon  is  in  force  in  this  state. 

Anterior  to  the  Revolution,  the  entire  system  of  the  com- 
mon law,  with  respect  to  the  descent  of  lands,  was  adopted  in 
this  colony  as  part  of  the  common  law  which  the  colonists 
brought  with  them  from  the  mother  country.  As  such,  it  wa& 
retained  by  that  section  of  the  constitution,  which  declared  that 
the  common  law  of  England,  as  well  as  so  much  of  the  statute 
law  as  had  theretofore  been  practiced  in  the  colony,  should 
remain  in  force  until  altered  by  future  legislation.  The  canon 
now  in  question,  as  part  of  the  common  law  so  adopted,  is  still 
the  law  in  this  state,  unless  it  has  been  abrogated  by  act  of  the 
legislature,  either  in  express  words,  or  by  necessary  implica- 
tion. 

Until  1780,  the  descent  of  lands  in  this  state  continued  to 
be  regulated  by  the  rules  of  the  common  law,  without  any 
change  or  abatement  of  their  rigor.  The  act  of  May  24th, 
1780,  {Pat.  43,)  was  the  earliest  legislation  on  this  subject. 
By  this  act,  primogeniture  among  sons  and  brothers  wa& 
abolished,   and    the    inheritance   descended    to   the   sons   op 


MARCH  TERM,  1872.  419 


Bray  v.  Taylor. 


brothers  in  equal  shares  as  tenants  in  common,  where  by  the 
common  law,  the  eldest  son  or  eldest  brother  alone  would  have 
inherited.     Daughters  were  admitted  to  share  the  estate  with 
the  sons  and  sisters  with  the  brothers,  in  the  proportion  of  one 
share  to  a  female,  and  two  shares  to  a  male,  and  the  issue  of 
any  child,  or  brother  or  sister  dying  in  the  lifetime  of  the 
person  last  seized,  represented  his  or  her  ancestor,  and  was 
entitled  to  the  share  the  parent  would  have  taken,  if  living  at 
the  death  of  the  person  so  seized.     The  same  inequality  of 
division   among  such  issue,  as  between   males  and  females, 
being  observed,  and  in  certain  cases  in  default  of  issue,  and  of 
brothers    and   sisters   of  the  whole   blood,  and  their   issue, 
brothers  and  sisters  of  the  half  blood  were  allowed  to  inherit; 
the  brother  of  the  half  blood  being  also  entitled  to  two  shares, 
and  the  sister  to  one  share. 

By  the  act  of  January  24th,  1799,  {Pat.  339,)  posthumous 
children  of  a  father  dying  testate  or  intestate,  were  made  capa- 
ble of  inheriting,  the  same  as  if  born  in  the  lifetime  of  the 
father,  unless  expressly  excluded  by  the  will  of  the  deceased. 

In  1816,  by  two  acts  passed  respectively  on  the  5th  and 
15th  of  February,  the  inequality  of  the  shares  of  males  and 
females,  where  they  were  entitled  to  inherit,  was  removed,  and 
females,  in  such  cases,  were  admitted  to  an  equal  share  with 
the  males,     ^c^s,  1816,  ^p.  7,  26. 

The  acts  of  May  24tli,  1780,  and  of  February  5th  and 
15th,  1816,  were  repealed  by  the  act  of  January  29th,  1817, 
but  the  provisions  of  the  repealed  acts  were  in  substance  re- 
enacted  by  the  new  act.     R.  L.  608. 

It  is  manifest  that  the  legislation  that  preceded  the  act  of 
1817  did  not  supersede  the  entire  system  of  the  common  law, 
whereby  the  succession  to  lands  on  the  death  of  the  owner 
was  determined,  and  that  its  operation  was  only  to  modify 
the  rules  of  the  common  law  in  some  particulars,  by  pro- 
viding for  succession  in  certain  cases.  No  provision  wds 
made  for  descent  in  the  collateral  line  beyond  brothers  and 
sisters  of  the  whole  blood  and  their  issue,  and  brothers  and 
sisters  of  the  half  blood.     Of  necessity,  descent  beyond  the 


420      COURT  OF  ERRORS  AND  APPEALS. 

Bray  v.  Taylor. 

enumerated  classes  continued  to  be  regulated  by  the  canons  of 
the  common  law,  which  had  not  been  altered  or  modified  by 
act  of  legislature.  In  none  of  this  legislation  is  there  the 
faintest  indication  of  a  legislative  intent  to  change  or  abrogate 
the  canon  in  question.  The  subject  of  the  ascent  of  lands 
lineally,  is  not  in  the  slightest  degree  touched  upon  in  any  of 
these  enactments.  No  expression  used  therein,  or  principle 
<idopted  thereby,  can,  by  construction  pursued  in  the  most 
aggressive  spirit,  be  made  to  reach  the  subject  of  the  exclusiou 
of  relations  in  the  direct  ascending  line. 

The  act  of  1817  contained  the  earliest  provision  in  favor  of 
succession  by  ancestors  in  the  direct  line.  It  admitted  the 
father  to  inherit  next  after  the  children  of  the  deceased  and 
their  issue,  and  brothers  and  sisters  of  the  whole  blood  and 
their  issue,  unless  the  inheritance  came  to  the  person  so  seized 
from  the  part  of  his  or  her  mother  by  descent,  devise,  or  gift. 
Except  as  to  such  inheritances,  the  father  was  preferred  to 
brothers  and  sisters  of  the  half  blood.  By  this  act  the  child 
or  children  of  any  deceased  brother  or  sister  of  the  half  blood, 
dying  in  the  lifetime  of  the  person  seized,  were  a'dmitted  to 
succeed  to  the  share  the  parent  would  have  been  entitled  to, 
if  he  or  she  had  survived.  Then  followed  the  act  of  1838  by 
which  the  mother  of  any  person  dying  seized  without  leaving 
lawful  issue,  and  without  leaving  a  brother  or  sister  of  the 
whole  blood,  or  any  lawful  issue  of  any  such  brother  or  sister, 
and  without  leaving  a  father,  became  entitled  to  inherit  for 
life,  without  any  qualification  as  to  the  source  from  which 
the  inheritance  came  to  the  deceased.     Acts,  1838,^.  85. 

By  the  fifth  section  of  the  act  of  1817,  in  default  of  tiie 
enumerated  heirs  on  the  death  of  the  person  seized,  leaving 
several  persons,  all  of  equal  degree  of  consanguinity  to  the 
person  so  seized,  it  was  provided  that  the  lands  should  descend 
and  go  to  the  said  several  persons  of  equal  degree  of  consan- 
guinity, as  tenants  in  common,  in  equal  parts,  however  re- 
mote from  the  person  so  seized  the  common  degree  of  con- 
sanguinity might  be,  excluding,  however,  in  case  the  inheri- 
tance came  to  the  person  so  seized  by  descent,  devise,  or  gift 


MARCH  TERM,  1872  421 


Brav  V.  Tavlor. 


from  some  one  of  his  or  her  ancestors,  all  those  who  are  not 
of  the  blood  of  such  ancestor,  if  there  be  any  person  or  per- 
sons in  being,  of  the  blood  of  such  ancestor,  capable  of  inher- 
iting. This  section,  as  modified  by  the  act  of  1838,  with 
respect  to  the  life  estate  of  the  mother,  still  remains  in  force, 
and  is  the -sixth  section  of  the  present  act.     Nix.  Dig.  236.* 

The  provisions,  with  respect  to  the  father  and  mother 
above  mentioned,  comprise  all  the  legislation  there  is  in  rela- 
tion to  the  inheriting  of  lands  by  those  in  the  ascending  line. 
It  was  not  insisted  on  the  argument,  nor  can  it  be  asserted 
with  any  reason,  that  an  implication  arises  from  these  special 
provisions  of  the  entire  abrogation  of  the  common  law  canon, 
which,  under  all  circumstances,  excluded  those  who  were  in 
the  direct  ascending  line.  Nor  can  such  a  result  be  deduced 
upon  any  principle  of  legal  construction  from  the  language 
of  the  section  which  regulates  descent  in  default  of  the  enu- 
merated heirs. 

The  canon  in  question  occupied  a  conspicuous  place  in  the 
English  law  of  descents.  Indeed,  it  may  be  said  to  have  been 
one  of  the  chief'  foundation  stones  in  the  structure  of  feudal 
tenures.  It  was  incontestably  part  of  the  common  law  at  the 
reparation  of  the  colonies  from  the  mother  country.  As  such, 
it  was  adopted  as  the  law  of  this  state  by  the  first  constitution. 
If  it  has  since  been  abrogated,  the  evidence  of  repeal  must  be 
obtained  from  some  expression  of  the  legislative  will,  ascer- 
tained upon  the  principles  of  construction,  which  govern  the 
-court  in  determining  when  a  prior  law  has  been  superseded 
or  altered  by  statute.  No  evidence  of  such  change  is  fur- 
nished, either  expressly  or  by  implication,  in  the  several 
statutes  which  have  been  passed  for  the  purpose  of  regulating 
the  descent  of  lands  in  this  state. 

It  is  not  intended  to  express  or  intimate  any  opinion  as  to 
the  method  of  computing  the  degrees  of  consanguinity  under 
the  section  under  consideration ;  nor  upon  the  question 
whether  the  children  of  any  deceased  person,  who,  if  living  at 
the  death  of  the  person  seized,  would  have  been  within  the 


*Eev.,p.298. 


422       COURT  OF  ERRORS  AND  APPEALS. 

State,  Rogers,  Pros.,  v.  Troth  et  al. 

class  of  those  of  equal  degree  of  consanguinity,  are  entitled  to 
represent  their  deceased  parent.  These  important  questions 
are  not  involved  in  the  decision  of  this  ease,  and  it  is  not 
necessary  to  express  any  opinion  on  those  subjects. 

The  judgment  of  the  Circuit  Court  is  affirmed,  on  the 
ground  that  the  rule  of  the  common  law  that  inheritances 
shall  not  lineally  ascend,  altliough  modified  so  as  to  let  in  the 
father,  and  to  some  extent  the  mother,  has  not  been  abolish- 
ed ;  and  that  therefore  the  plaintiff  in  error  did  not  acquire^ 
by  descent,  on  the  death  of  her  grandson,  title  to  the  prem- 
ises in  dispute. 

For  affirmance — The  Chancellor,  Depue,  Scddder,. 
Van  Syckel,  Woodhull,  Clement,  Lathrop,  Ogden, 
Olden,  Wales.     10. 

For  reversal — ^oue. 
Cited  in  Smith  v.  Gaines,  8  Slew.  Eq.  65. 


THE  STATE,  ROGERS,  PROSECUTOR,  v.  TROTH  AND  OTHERS. 

1.  The  84th  section  of  the  act  concerning  roads,  [Nix.  Dig.  289,)  prohibita 
the  pulling  down  or  removal  of  anv  dwelling-house  by  virtue  of  any 
provision  in  that  act,  and  makes  it  unlawful  to  lay  out  a  road  through 
such  dwelling-house,  as  the  road  could  not  be  opened  or  used. 

2.  A  billiard  saloon  attached  to  a  hotel,  always  used  in  connection  with 
and  as  a  part  of  the  hotel,  for  purposes  appertaining  to  the  business  of 
the  hotel,  and  for  no  other  purpose,  and  erected  for  that  object,  is  a 
part  of  the  dwelling-house,  within  the  protection  of  the  said  34th  sec- 
tion of  the  road  act. 


On  error  to  the  Supreme  Court. 

For  former  proceedings  in  this  case  see  5  Vroom  377,  {State, 
Pancoast,  Pros.,  v.  Troth.) 

For  the  plaintiff  in  error,  31.  Hutchinson  and  A.  Browning, 

For  the  defendants,  G.  S.  Cannon  and  James  Wilson. 


MARCH  TERM,  1872.  423- 

State,  Rogers,  Pros.,  v.  Troth  et  al. 

The  opinion  of  the  court  was  delivered  by 

The  Chancellor.  The  certiorari  from  the  Supreme- 
Court  brought  before  it  the  proceedings  of  the  Court  of  Com- 
mon Pleas  of  the  county  of  Burlington,  in  appointing  survey- 
ors to  lay  out  a  road  in  the  city  of  Bordentown,  and  the  pro- 
ceedings of  the  surveyars  in  laying  out  the  road.  That  court 
affirmed  the  proceedings  of  both. 

One  of  the  reasons  for  reversal  was,  that  the  Court  of  Com- 
mon Pleas  had  no  jurisdiction  as  to  laying  out  roads  in  the 
•city  of  Bordentown.  On  this  point,  this  court  was  unani- 
mously of  opinion,  after  hearing  both  counsel  for  the  plaintiff 
in  error,  that  the  judgment  of  the  Supreme  Court  was  right;, 
another  reason  was,  that  the  surveyors  had  no  right  to  assess 
the  expenses  on  the  whole  township  of  Bordentown,  but 
should  have  confined  the  assessment  to  the  city.  On  this 
point,  after  hearing  the  opening  counsel  for  the  plaintiff,  the 
court,  one  member  dissenting,  was  also  of  opinion  that  the 
judgment  of  the  Supreme  Court  was  right,  and  did  not  hear 
the  counsel  for  the  defendant  on  either  of  these  points. 

Another  reason  for  reversal  was,  that  tiie  road  was  laid  out 
thcough  a  dwelling-house  of  the  prosecutor.  The  Supreme 
Court  determined  that  the  building  was  not  a  dwelling-house. 
The  building,  part  of  which  was  included  in  the  road,  was 
one  used  as  a  billiard  saloon,  adjoining  and  connected  with  a 
stone  dwelling-house  of  the  prosecutor,  occupied  as  a  tavern. 
This  saloon  was  occupied  by  the  tenant  of  the  tavern  as  part 
of  the  tavern  stand,  and  was  used  for  the  purposes  of  the 
tavern,  principally  as  a  billiard  room,  having  two  tables,  but 
sometimes  for  public  meetings,  for  justices'  trials,  and  for  an 
oyster  stand ;  it  was  capable  of  being  used  for  lodgers,  if  the 
main  house  should  be  full.  It  was  connected  with  the  bar- 
room directly  by  a  door  between  them,  and  also  by  an  oyster 
saloon  connected  with  each  by  a  door.  Il  was  built  of  wood,  ^ 
against  the  main  building,  which  was  of  stone.  It  was  built 
long  after  the  main  building,  and  in  parcels  at  different  times» 
It  was  built  by  the  tenant  with  consent  of  the  owner,  upon 
an  agreement  by  which   the  tenant  could  remove  it.     The- 


424   COURT  OF  ERRORS  AXD  APPEALS. 

State,  Kogers,  Pros.,  v.  Troth  et  al. 

main  house  had  a  cellar,  the  saloon  had  none,  but  it  was  built 
over  the  outside  cellar  steps  of  the  house,  and  had  access  to 
the  cellar  by  a  door  in  the  floor  over  these  steps.  The  rafters 
of  the  saloon  were  let  into  and  fastened  to  the  walls  of  the 
main  house,  by  cutting  out  part  of  the  wall  for  the  purpose. 
The  sides  of  the  saloon  merely  butted  against  the  wall  of 
the  house  without  any  fastening.  The  stone  wall  of  the 
house  inside  of  the  saloon  was  not  changed  or  covered,  except 
by  a  coat  of  whitewash.  Before  the  road  was  laid  out,  the 
tenant  sold  the  saloon  to  his  landlord,  who  owned  it  at  the' 
laying  out. 

The  hotel  was  a  dwelling-house — the  only  question  is 
whether  the  saloon  was  a  part  of  the  hotel ;  this  must  be  de- 
termined' by  its  use  and  the  manner  in  which  it  is  connected 
with  it.  That  it  was  built'  by  a  tenant  under  an  agreement 
for  removal,  and  in  such  manner  that  it  could  be  removed 
without  serious  injury  to  the  house,  cannot  affect  the  question. 
An  entire  dwelling-house  might  have  been  thus  built.  When 
the  landlord  bought  the  saloon,  its  relation  to  the  house  was 
the  same  as  if  it  had  been  erected  by  him. 

We  are  of  opinion  that  this  saloon  was  part  of  the  dwelling- 
house,  both  from  its  connection  and  from  its  use.  It  was 
•supported  upon  and  connected  with  the  ground  by  the  founda- 
tion, of  whatever  constructed.  Its  rafters  were  let  into  the 
-solid  wall  of  the  house  and  fastened  there.  It  was  such  a 
building  as  could  not  be  removed,  except  by  special  agree- 
ment. For  use  in  connection  with  the  hotel,  it  communicated 
with  it  by  two  doors  and  a  cellar  door. 

It  was  always  used  in  connection  with,  and  as  a  part  of  the 
hotel,  for  purposes  appertaining  to  the  business  of  the  hotel, 
and  for  no  other  purpose,  and  such  was  the  object  of  its  erec- 
tion. The  billiard  room  of  a  private  citizen,  used  by  himself 
^nd  his  family,  is  part  of  his  dwelling-house,  whether  inside 
of  the  main  house  or  annexed  as  a  wing;  it  is  as  much  so  as 
the  dining  room  or  library.  Each  of  these  is  frequently  built 
^s  a  wing  or  extension  of  the  main  house.     The  Supreme 


MARCH  TERM,  1872.  425 

State,  Shreve,  Pros.,  v.  Ccosley,  Collector  of  Trenton. 

Court,  in  our  opinion,  erred  in  holding  that  this  saloon  was 
not  part  of  the  dwelling  house. 

The  34th  section  of  the  road  act  prohibits  the  pulling  down 
or  removing  a  dwelling-house  by  virtue  of  any  provision  in 
that  act,  and  this  clearly  makes  it  unlawful  to  lay  out  a  road 
through  it,  as  the  road  could  not  be  opened  or  used. 

The  judgment  of  the  Supreme  Court  must  be  reversed,  and 
the  proceedings  of  the  Court  of  Common  Pleas  and  of  the 
surveyors  set  aside. 

For  reversal — The  Chancellor,  Chief  Justice,  Scud- 
deb,  Clement,  Kennedy,  Lathrop,  Ogden,  Wales.     8. 

F(yr  affirmance — None. 


THE  STATE,  WILLIAM  A.  SHREVE,  PEOSECUTOR,  PLAIN- 
TIFF IN  ERROR,  V.  CROSLEY,  COLLECTOR,  &c.,  OF  THE 
CITY  OF  TRENTON,  DEFENDANT  IN  ERROR. 

1.  The  deduction  of  debts  in  cases  of  taxation  must  be  claimed  and  made, 
in  the  first  instance,  at  the  place  of  the  residence  of  the  tax  payer. 

2.  The  commissioners  of  appeal  in  case  of  taxation,  have  a  right  to 
reconsider  their  opinion  until  such  opinion  has  been  officially  promul- 
gated by  them. 

Error  to  the  Supreme  Court. 

The  certiorari  in  this  case  was  brought  to  set  aside  the  tax 
assessed  on  certain  real  estate  owned  by  the  prosecutor  in  the 
city  of  Trenton,  in  the  year  1865.  After  argument,  the 
assessment  was  affirmed  by  the  Supreme  Court  at  June  Term, 
1867,  an  opinion  was  delivered,  but  never  filed  in  the  office 
of  the  clerk.  The  judgment  was  removed  into  this  court,  and 
errors  assigned. 


426       COURT  OF  ERRORS  AND  APPEALS. 

State,  Shreve,  Pros.,  v.  Crosley,  Collector  of  Trenton. 
For  the  plaintiff  in  error,  F.  Kingman. 

For  the  defendant  in  error,  J.  S.  Aitkin. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  In  the  year  1865,  a  tax  was 
assessed  on  certain  real  estate  situated  in  the  city  of  Trenton. 
This  i)roperty  was  owned  by  Mr.  Shreve,  the  prosecutor,  who 
was,  at  the  time  of  such  assessment,  a  resident  of  Borden- 
town,  Burlington  county.  The  agent  of  the  prosecutor  went 
before  the  commissioners  of  appeal  in  cases  of  taxation,  in 
Trenton,  and  presented  an  affidavit,  claiming  to  have  the 
amount  of  certain  mortgages  which  were  upon  these  premises, 
•deducted  from  their  taxable  valuation.  This  assessment  being 
carried  by  certiorari  into  the  Supreme  Court,  was  confirmed, 
-and  it  is  now  brought  before  this  court  by  writ  of  error. 
■  The  first  question  which  was  here  discussed  is,  whether  the 
■claim  to  deduct  this  mortgage  money  is  well  founded  in  law? 

This  inquiry  must,  I  think,  receive  a  negative  response. 
There  are  repeated  adjudications  of  the  Supreme  Court,  to 
the  effect  that  the  debts  of  the  tax  payer  must  Ije  deducted  at 
the  place  of  his  residence.  This  result  Avas  reached  from  a 
•consideration  of  those  provisions  contained  in  the  series  of 
laws  upon  this  subject,  which  direct  the  indebtedness  of  the 
person  taxed  to  be  taken  from  the  valuation  of  his  personal 
unci  real  estate,  and  which  also  declare  that  his  personal  prop- 
erty shall  be  assessed  at  the  place  of  his  residence.  As  the  de- 
duction was  to  be  made,  in  part,  from  the  personalty,  it  seemed 
necessary  to  resort,  for  that  purpose,  to  the  only  place  where 
that  species  of  property  was,  by  force  of  the  tax  laws,  valued 
and  assessed.  It  would,  certainly,  be  difficult  to  execute 
these  statutes  on  any  other  theory.  Upon  the  argument,  it 
was  suggested  that  these  decisions  of  the  Supreme  Court  are 
not  exactly  applicable,  on  the  ground,  as  it  was  insisted,  that 
they  do  not  expound  the  laws  which  were  in  force  at  the  time 
■of  the  making  of  the  assessment  now  in  dispute.     But  this 


MARCH  TERM,  1872.  427 

State,  Shreve,  Pros.,  v.  Crosley,  Collector  of  Trenton. 

is,  in  part,  a  mistake  as  to  the  fact,  for  in  the  case  of  The 
State  V.  Willi'imson,  4  Vroom  77,  an  assessment  made  in  the 
year  1865  was  the  subject  of  examination,  and  consequently 
that  decision  is,  in  every  respect,  in  point.  Nor  is  the  case 
of  The  State  v.  Bishop,  5  Vroom  45,  if  we  regard  the  ground 
of  decision,  to  be  distinguished  from  the  present  case.  Both 
these  conditions  rest  on  the  common  foundation,  that  as  the 
acts  direct  the  debts  to  be  deducted  from  a  conjoint  valuation 
of  personal  and  real  property ;  and  as  such  valuation  is  to  be 
made  only  at  the  place  of  residence,  the  deduction,  as  a  neces- 
sary consequence,  must  be  made  at  that  place.  These  provisions 
were  in  force  in  1865,  when  the  present  assessment  was  made, 
and  have  been  continued  through  the  several  changes  of  the 
system  which  have  since  occurred.  See  Paraph.  L.,  1862,  j^- 
351,  §§  7,  12 ;  Pamph.  L.,  1864,  p.  732 ;  Nix.  Dig.  955,  §  20.* 
The  consequence  is,  the  cases  cited  are  completely  applicable. 
The  deduction  of  debts  should  have  been  claimed  by  the  prose- 
cutor, at  least  in  the  first  instance,  at  his  place  of  residence. 

There  was  another  position  taken  on  the  argument  by  the 
counsel  of  the  prosecutor,  which  seemed  at  first  view  to  be 
more  tenable.  It  was  insisted  that  the  commissioners  of  ap- 
peal decided  this  controversy  in  favor  of  the  prosecutor. 

The  statute  appears  to  give  these  oflBcers  plenary  power 
over  this  subject.  Its  language  is  this :  "  The  said  commis- 
sioners, after  due  examination  of  the  facts  and  consideration 
of  the  case,  shall  give  such  judgment  as  shall  be  agreeable 
to  the  principles  of  justice,  which  judgment  shall  be  final 
and  conclusive,"  &c.  If,  then,  this  tribunal,  clothed  with 
this  full  authority,  has  made  a  decision  in  favor  of  the  claim  of 
the  prosecutor,  it  might  be  contended,  on  reasonable  grounds, 
tliat  such  finding  was  conclusive  and  should  be  enforced.  But 
the  evidence,  when  carefully  noted,  does  not  present  the  case 
in  this  aspect.  As  I  interpret  the  depositions,  no  decision  was 
given  in  favor  of  the  prosecutor.  All  that  appears  is  that  at 
one  time  the  commissioners  intended  to  do  so,  but  that  they 
afterwards  changed  their  minds.     The  evidence  shows  that  this 

*  Bev.,  p.  1157,  2  78. 


428   COURT  OF  ERRORS  AND  APPEALS. 

State,  Shreve,  Pros.,  v.  Crosley,  Collector  of  Trenton. 

was  the  course  of  affairs,  viz. :  that  the  agent  of  the  prosecu- 
tor presented  his  affidavit  to  the  commissioners ;  that  some 
days  afterwards,  being  the  last  day  of  their  sitting,  his  attor- 
ney again  called  their  attention  to  the  appeal ;  that  the  com- 
missioners, consulting  with  each  other,  determined  to  make  the 
deduction  of  debts,  and  without  announcing  their  intention, 
marked,  privately,  such  allowance  on  a  sheet  of  paper  which 
contained  memoranda  relating  to  other  appeals,  and  that  in  the 
afternoon  of  the  same  day  they  reconsidered  the  subject  and 
allowed  the  assessment  to  stand  in  its  original  form. 

This  course  of  proceeding  seems  to  me  unobjectionable. 
All  bodies,  possessing  a  judicial  capacity,  have  the  compe- 
tency to  consult,  resolve  and  reconsider,  and  they^are  not  bound 
by  their  conclusions  until  such  conclusions  have  been  pro- 
mulged  by  their  authority.  In  the  present  instance  there  was 
nothing  to  prevent  the  further  action  of  the  board  but  an  un- 
announced opinion,  formed  while  in  private  consultation.  It 
is  true  that  the  agent  of  the  prosecutors  testifies  that  one  of  the 
commissioners  told  him  that  the  board  had  determined  to  make 
the  deduction  which  was  claimed.  But  it  is  not  pretended 
that  such  information  was  communicated  to  him  while  he  was 
before  the  board,  or  by  their  authority.  It  does  not  even  ap- 
pear when  or  where  this  intelligence  was  conveyed.  A  single 
member  could  not  bind  the  board  by  an  unauthorized  intima- 
tion of  its  purpose.  Under  the  circumstances,  I  see  nothing 
wrong  or  illegal  in  the  act  of  the  commissioners  in  changing 
their  views  before  such  views  had  been  officially  announced  or 
made  known  by  them. 

The  judgment  of  the  Supreme  Court  should  be  affirmed, 
with  costs. 

For  affirmance — The  Chancellor,  Chief  Justice,  De- 
PUE,  ScuDDER,  Van  Syckel,  Clement,  Dodd,  Lathrop, 
Wales.     9. 

For  reversal — None. 

Cited  in  Slate,  Cummins,  pros.,  v.  Jones,  11  Vr.  105  ;  Whitney  \.  Van  Bos' 
kirk,  11  Vr.  463;  Slate,  Davison,  pros.,  v.  Silvers,  12  Vr.  605;  State,  Vaii 
pros.,  V.  Hunyon,  12  Vr.  98. 


MARCH  TERM,  1872.  429 


United  States  Watch  Co.  v.  Learned. 


THE  UNITED  STATES  WATCH  COMPANY  v.  LEAENED. 

1.  A  judge  at  a  circuit,  on  a  Supreme  Court  issue,  may  allow  an  amend* 
ment,  changing  the  action  from  covenant  to  assumpsit. 

2.  Such  act  is  discretionary,  and  is  not  the  subject  of  a  writ  of  error. 


On  error  to  the  Supreme  Court. 

This  case  was  tried  before  Justice  Depue  and  a  jury,  at  the 
circuit  for  Essex  county,  at  the  September  Terra,  1870.  A 
verdict  having  been  given  for  the  plaintiff,  and  judgment 
entered  thereon,  a  writ  of  error  was  brought  to  this  court. 

For  the  plaintiff  in  error,  L.  Zabrislcie. 

For  the  defendant,  T.  Runyon. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  This  writ  of  error  is  brought 
to  reverse  the  judgment  of  the  Supreme  Court  for  certain  sup- 
posed errors  existing  in  the  record.  There  was  no  bill  of 
exceptions,  so  that  there  is  nothing  before  us  but  the  tran- 
script from  the  judgment  book  of  the  court  below. 

The  first  fault  imputed  on  the  argument  to  this  record  was^ 
that  it  appears  that  the  action  originally  was  covenant,  and 
that  the  judge  presiding  at  the  circuit  allowed  it  to  be  changed 
into  assumpsit. 

The  suit  originated  in  the  Supreme  Court,  and  the  amend- 
ment thus  impeached  was  made  at  the  trial.  The  pleadings,, 
as  they  are  now  presented  to  us,  consist  of  the  declaration  iii 
covenant  an«l  several  pleas  in  that  form,  and  to  one  of  which 
there  appears  to  have  been  no  replication  ;  the  declaration  in 
assumpsit,  which  contains  a  special  count  on  a  contract  of 
hiring,  and  the  common  counts;  the  plea  to  this  latter  narra- 
tion is  the  general  issue. 

Vol.  VII.  27 


430       COURT  OF  ERRORS  AND  APPEALS. 

United  States  Watch  Co.  v.  Learned. 

It  has  already  been  decided  by  this  court  that  the  power  of 
amendment  conferred  by  the  practice  act,  rests  in  the  discre- 
tion of  the  court  or  judge,  and  that  where  the  power  exists, 
the  exercise  of  such  authority  cannot  be  reviewed  on  error. 
In  this  class  of  cases,  therefore,  the  only  inquiry  wiiich  can 
arise  in  this  court  is,  whether  there  was'  a  power  to  amend  in 
the  given  case?  That  the  power,  whenever  it  exists,  has 
been  properly  used,  is  a.  presumptio  juris  et  dejure. 

In  the  case  of  Price  v.  The  New  Jersey  Railroad  and  Trans- 
portation Company,  2  Vroom  229,  the  Supreme  Court,  upon 
a  careful  examination  of  the  section  of  the  practice  act  now  in 
question,  decided  that  it  was  the  purpose  of  such  section  to 
enable  every  error  in  form,  in  all  civil  causes,  to  be  corrected 
in  any  stage  of  the  suit,  so  that  the  parties  might  try  the 
matter  in  dispute,  which  they  contemplated  to  try,  or  which 
anight  be  necessary  to  sustain  the  decision  resulting  from  such 
trial.  In  that  case,  there  was  a  transmutation  after  the  trial 
■of  the  action  from  trespass  to  case.  This  interpretation  of  the 
section  we  deem  to  be  correct,  and  it  is  obvious  that  by  force 
of  such  a  construction,  the  judge  at  the  circuit  had  authority 
to  order  the  present  amendment. 

The  next  objection  was,  that  the  special  count  does  not  show 
any  legal  ground  of  action.  This  point  was  rested  mainly  on 
the  defects  of  this  count,  as  set  forth  in  the  declaration  in 
covenant.  But  it  is  clear  that  by  the  order  to  amend,  and 
the  consequent  interposition  of  a  new  declaration,  this  count  in 
•covenant  was  completely  abolished.  Nor  can  the  pleas  to  such 
•original  declaration  affect  the  case.  The  cause  was  tried  upon 
the  new  pleadings,  and  their  legal  value  is  the  only  matter 
to  be  now  considered.  I  have  not  discovered  any  insuffi- 
ciency in  the  special  count  in  this  declaration  in  assumpsit 
but  whether  such  error  exists  or  not,  is  a  thing  of  no  con- 
sequence at  this  stage  of  th-e  case.  If  there  is  one  good  count, 
the  judgment,  by  force  of  our  statute,  must  stand  ;  and  in  this 
record  the  common  counts  are  entirely  formal  and  unexcep- 
tionable. The  plea  is  the  general  issue,  and  consequently 
this  court  cannot  legally   know  that  the  judgment  has  not 


MARCH  TERM,  1872.  431 

United  States  Watch  Co.  v.  Learned. 

been  rendered  for  money  lent,  or  for  any  of  the  other  consid- 
erations embraced  in  this  common  count. 

The  remaining  objection  was,  that  assumpsit  will  not  lie  on 
a  contract  under  seal,  but  the  answer  is,  that  there  is  no  evi- 
dence that  the  amended  declaration  was  founded  on  such  an 
instrument,  or  that  the  recovery  has  such  a  basis.  If  such 
fact  existed,  a  bill  of  exception  was  the  proper  evidence  of  it. 

Let  the  judgment  be  affirmed. 

For  affirmance — The  Chief  Justice,  Bedle,  Daleimple, 
ScuDDER,  Van  Syckel,  Woodhull,  Clement,  Dodd, 
Lathrop,  Olden,  Wales.     11. 

For  reversal — None. 

Cited  in  Cory  v.  Freeholders  of  Somerset,  15  Vr.  445* 


CASES  AT  LAW 


DETEBMINED   IN  THE 


COURT  OF  ERRORS  AND  APPEALS 


OF  THE 


STATE  OF  NEW  JERSEY, 

AT  JUNE  TERM,  1872. 


BENJAMIN  F.  SISSON,  PLAINTIFF  IN  ERKOR,  v.  JOHN  E. 
DONNELLY,  DEFENDANT  IN  ERROR 

1.  A  copy  of  the  record  of  a  deed  of  conveyance  has  the  same  effect  as 
evidence  as  the  deed  itself;  and  in  the  absence  of  such  deed,  it  is  not 
competent  to  show,  in  a  trial  at  law,  that  such  copy  is  not  a  true  trans- 
cript of  the  deed. 

2.  The  statute  puts  the  copy  from  the  record  on  the  same  level  with  the 
deed  itself,  and  if  by  mistake  anything  has  been  omitted  from  the 
record,  the  mistake  must,  if  the  deed  be  lost,  be  rectified  in  a  court  of 
equity. 

3.  A  copy  of  the  record  of  a  conveyance  purported  to  convey  a  life 
estate — Held,  that  on  the  trial  at  law  it  was  not  competent  to  show  by 
circumstances,  that  it  was  to  be  inferred  that  the  deed  itself,  which  had 
been  lost,  contained  words  of  inheritance  so  as  to  make  the  estate  a  fee 
simple. 

4.  Where  technical  words  are  not  required,  a  deed  of  conveyance,  like 
all  other  instruments,  will  be  read  by  the  court  in  the  sense  of  the 
meaning  of  the  pariies. 

432 


JUNE  TERM,  1872.  433 

Sisfion  V.  Donnelly. 

5.  In  a  tripartite  deed,  which  conveyed  the  estate  to  the  party  of  the 
second  part,  when  it  was  clearly  manifest  that  the  intention  was  to 
convey  to  the  party  of  the  third  part,  and  that  there  was  a  mistake  in 
the  designation  of  the  grantee — Held,  the  intention  being  clear,  that 
the  proper  correction  could  be  made  by  construction,  and  that  the 
estate  was  vested  in  the  party  of  the  third  part. 

On  writ  of  error  to  Supreme  Court. 

The  facts  of  the  case  are  fully  shown  in  the  opinion  of  the 
court 

For  the  plaintiff  in  error,  Thomas  N.  MoCarter  and 
B.  Williamson. 

For  the  defendant  in  error;  I.  W.  Scudder  and  R.  Gilchrist, 
Attorney-General. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  It  is  admitted  that  one  Jo- 
seph P.  Peters  was  formerly  the  owner  in  fee  of  the  prem- 
ises in  dispute,  both  parties  claiming  mediately  from  him. 

The  defendants  bring  into  court,  as  the  primary  link  in 
their  chain  of  title,  a  deed  of  conveyance,  dated  the  19th  of 
April,  1841,  from  the  proprietor  just  named,  to  Mortimer 
A.  F.  Harrison.  The  deed,  in  its  premises,  uses  the  follow- 
ing terms  of  conveyance,  viz. :  "  That  the  said  party  of  the 
first  part,  (who  are  Peters  and  his  wife,)  in  consideration,  &c., 
have  sold,  and  by  these  presents  do  grant  and  convey  to  the 
said  party  of  the  second  part,  all  that  certain  tract,"  &c. 
There  is  no  habendum,  and  the  convenants  are  in  these  words, 
to  wit :  ''  And  the  said  Joseph  P.  Peters  doth  hereby  cove- 
nant and  agree,  that  at  the  delivery  hereof,  he  is  the  lawful 
owner  of  the  premises  above  granted,  and  seized  of  a  good 
and  indefeasible  estate  of  inheritance  therein,"  &c.,  "and 
that  he  will  warrant  and  defend  the  above  granted  premises 
in  the  quiet  and  peaceable  possession  of  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  forever. 


434       COURT  OF  ERRORS  AND  APPEALS. 

Sisson  V.  Donnelly. 

That  an  instrument  thus  framed  will  pass  only  a  life 
estate  to  the  grantee,  was  settled  in  this  court  in  the  ease  of 
Adams  v.  Ross,  reported  in  1  Vroom  505.  That  decision 
was  rested  on  the  clear  common  law  doctrine  that  the  word 
"  heirs  "  is  necessary,  in  a  conveyance,  to  the  creation  of  a 
fee  simple,  and  that  no  expression  of  intention,  in  substituted 
terms,  would  have  an  equivalent  effect.  In  the  same  judg- 
ment, it  was  likewise  decided,  that  where  a  life  estate  is  cre- 
ated, a  covenant  warranting  the  premises  to  the  grantee  and 
his  heirs,  will  not  enlarge  the  estate,  nor  pass,  by  estoppel,  a 
greater  interest  than  that  expressly  conveyed.  This  adjudi- 
cation conclusively  establishes  that,  reading  the  present  deed 
according  to  the  terms  above  recited,  an  estate  in  the  lands  in 
dispute  was  vested,  by  force  of  it,  in  the  grantee,  Mortimer 
A.  F.  Harrison,  for  his  own  life,  and  that  it  had  no  greater 
efficacy.  Harrison,  during  his  life,  conveyed  these  premises 
in  fee,  and  it  is  under  this  conveyance  that  the  defendants 
claim  to  hold  the  property.  Harrison  was  dead  at  the  time 
of  the  bringing  of  the  action ;  the  defendants,  therefore, 
cannot  rest  upon  the  conveyance  in  question,  if  such  convey- 
ance is  to  be  received  in  the  form  which  has  been  above  set 
forth. 

Upon  the  trial  at  the  circuit,  this  deed  from  Peters  to 
Harrison  was  introduced  by  the  plaintiff,  such  evidence  being 
necessary,  on  his  part,  in  order  to  explain  the  character  of 
the  possession  of  the  defendants  and  their  privies,  which  had 
continued  for  more  than  twenty  years.  Before  the  writ 
issued,  both  Peters  and  Harrison  had  died,  and  the  plaintiff 
had  procured  a  conveyance  in  fee  to  himself,  from  the  heir  of 
the  former,  and  he  insisted  that  the  land,  during  the  long 
period  which  had  elapsed  since  Peters  had  parted  with  the 
possession,  had  been  held  by  Harrison  and  his  grantees,  as 
tenants  of  the  life  estate  created  by  the  deed  above  mentioned, 
dated  April  19th,  1841.  In  making  this  proof,  the  plaintiff 
adduced  a  certified  copy  from  the  record  of  the  deed  in  qiies- 
tion,  and  it  appeared  in  the  case  that  the  original  deed  was 
not  to  be  found.     In  this  posture  of  the  evidence,  the  de- 


JUNE  TERM,  1872.  435 


Sisson  V.  Donnelly. 


fendants  offered  testimony  which,  they  insisted,  tended  to 
show,  and  from  which  they  said  the  jury  had  the  right  to 
conclude,  that  the  record  of  the  deed  was  imperfect,  and  that 
the  original  deed  contained  the  terms  which  are  requisite  to 
convey  the  fee.  This  view  was  adopted  by  the  judge  at  the 
circuit,  and  this  judicial  action  is  now  urged  as  a  ground  of 
error. 

The  proposition  which  alone  will  maintain  the  legal  pro- 
priety of  the  trial  is,  that  as  an  instrument  of  evidence,  a 
distinction  exists  between  a  deed  of  conveyance  and  the 
record  of  such  deed.  If  the  instrument  itself  had  been  pro- 
duced, it  is  not  pretended,  that  it  would  have  been  competent, 
in  a  court  of  law,  to  show  that  anything  had  been  left  out  of 
it  by  mistake.  Under  such  circumstances,  to  construe  it 
would  have  been  the  sole  province  of  the  court ;  not  a  word 
could  have  been  added  to  or  taken  away  from  its  contents. 
The  effect  of  the  instrument,  thus  construed  and  unmuti- 
lated,  would  have  been  conclusive  upon  the  parties  to  it  and 
their  privies.  As  a  mode  of  proof,  this  would  have  beea 
the  undeniable  quality  of  the  deed.  But  the  statute  which 
regulates  the  recording  of  conveyances,  declares  "  that  the 
record  aforesaid,  of  such  deed  or  conveyance,  and  the  tran- 
script of  such  record,  certified  to  be  a  true  transcript  by  the 
said  clerk,  in  whose  office  the  record  is  kept,  shall  be  received 
in  evidence  in  any  court  of  this  state,  amd  be  as  good,  effec- 
tual and  available  in  law,  as  if  the  original  deed  or  convey- 
ance were  then  and  there  produced  and  proved,"  &c.  The 
effect  of  this  provision  is,  I  think,  entirely  clear;  it  is  to 
give  the  same  probative  force  to  the  record  as  that  which, 
according  to  legal  rules,  is  inherent  in  the  deed.  As  modes 
of  testimony,  tliey  are  placed  on  the  same  footing.  The  one, 
in  the  way  of  proof,  is  to  be  as  efficacious  as  the  other.  The 
language  used  is  not  subject  to  the  least  uncertainty.  The 
words  are,  that  the  record  shall  "  be  received  in  evidence  in 
any  court  of  this  state,  and  shall  be  as  good,  effectual  and 
available  in  law,  as  if  the  original  deed  or  conveyance  was 
then  and  there  produced  and  proved."     Now,  if  the  original 


436       COURT  OF  ERRORS  AND  APPEALS.' 

Sisson  V.  Donnelly. 

deed  in  the  present  case  had  been  produced,  it  would  have 
incontrovertibly  established  the  fact,  that  it  contained  the 
entire  act  or  deed  of  the  party  who  had  executed  it.  Its 
effect  would  liave  been  to  exclude  all  attempts  to  show  that 
any  terms  or  provisions  had  been  omitted  by  mistake.  How 
then  can  it  be  insisted  that  the  record  is  open  to  such 
attempts?  If  a  word  can  be  added  to  the  record  which 
cannot  be  added  to  the  deed,  it  is  obvious  that  the  former 
is  not  as  available  in  law  as  the  latter.  If  the  record  of  a 
deed  which  in  clear  legal  terms  limits  but  a  life  estate  to  the 
grantee,  can  be  transformed  by  parol  evidence,  or  by  an  in- 
duction from  circumstances,  into  a  conveyance  of  a  fee,  on  the 
ground  that  it  is  not  a  true  copy  of  the  original  conveyance, 
ill  what  respect  is  the  record  as  effectual  or  available  in  law  as 
is  the  instrument  which  it  purports  to  record  ?  It  seems  to 
sue  that  it  is  clear,  that  to  thus  treat  the  record  is  to  degrade 
it  from  its  statutory  position  of  primary  evidence  to  the  level 
of  merely  secondary  evidence.  If,  as  a  means  of  proof,  the 
recorded  copy  is  of  a  grade  inferior  to  that  of  its  original, 
then  it  would  be  altogether  legal  to  sliow  a  want  of  corres- 
pondence between  the  two,  because  it  is  the  rule  that  the 
subordinate  proof  must  give  place  to  that  which  is  of  higher 
authenticity.  But  the  statute  does  not  put  the  recorded  copy 
of  a  conveyance  on  a  level  below  that  of  its  original,  but 
marks  them  with  precisely  the  same  rank.  They  are  both 
primary  evidence,  equal  in  efficacy  and  availability.  The 
*vident  design  of  the  statute  was,  when  the  original  deed 
was  absent,  to  substitute  the  recorded  copy  in  its  stead,  giving 
to  it  the  force,  not  of  an  ordinary  copy,  but  of  a  counterpart. 
"When  the  statute  has  said  that  the  recorded  copy  is  to  be  as 
-effectual  evidence  as  the  conveyance  itself,  I  am  not  able 
to  yield  to  the  notion  that  the  record  can  be  overthrown 
by  showing  that  it  is  not  a  true  copy  of  the  original.  The 
effect  of  such  a  rule  would  be  to  expose  the  recorded  copy  to 
all  the  uncertainties  of  parol  evidence  whenever  tire  original 
deed  had  been  lost  by  accident,  or  suppressed  from  fraud. 
Such  a  construction  of  the  law  would,  I  think,  clash  very 


JUNE  TERM,  1872.  437 

Sisson  V.  Donnelly. 

greatly  with  the  policy  of  our  laws  respecting  conveyances. 
For  it  is  a  great  mistake  to  suppose  that  the  provisions  of 
our  act,  which  control  the  subject,  are  designed  solely  to  pro- 
vide a  mode  of  registration  of  conveyances  for  the  informa- 
tion and  benefit  of  subsequent  purchasers.     It  is  true  that 
this  is  an  important  object  of  the  system,  but  it  is  not  its 
only  object.     If  this  were  the  sole  purpose,  a  mere  registra- 
tion, as  is  requisite  in  case  of  mortgages,  would  be  all  that 
would  be  necessary.     If  the  law  makers  had  nothing  but  a 
public  notification   in   view,   then   the  provisions,   directing, 
with   so   much  particularity,   the   conveyance  to  be  entered 
word  for  word  upon  the  record,  together  with  the  acknow- 
ledgments, proofs,    and    signatures,  and    the    plats,  surveys, 
and  schedules,  and  that  all  interlineations  and  words  visibly 
written  on  erasures,  should  be  noted  on  the  margin  or  at  the 
foot  of  the  record,  are  altogether  superfluous.     So,  too,  the 
enactment  bestowing  on  the  recorded   copy  the  capacity  of 
being  evidence,  is  obviously  a  part  of  a  different  purpose. 
Reading  the  statute,  as  a  whole,  I  think  two  purposes  are 
clearly  manifest;    the  one  is  to  furnish  a  register  on  which 
vendees   may   rely   when  about  to   take  a  title,  and  in   the 
second  place  to  establish  a  conclusive  record  of  the  convey- 
ance, a-s  between  vendor  and  vendee,  in  the  absence  of  the 
wriginal  deed.     And  this  latter  office  of  the  statute  I  think 
an    important   one,    for    it   is   to    be    remembered    that   the 
record  of  the  deed  is  the  only  evidence  or  muniment  of  the 
conveyance  which  the  vendor  has.     The  vendee  has  the  deed 
and  the  vendor  has  only  the  record  to  show  the  nature  and 
character  of  his  transfer.     From  very  early  times,  conveyance 
of  lands  in  this  state  has  been  made  by  deeds  poll;  as  inden- 
tures have  fallen   into  disuse,  there  are  no  counterparts,  so 
that  on  the  one  side  the  original  deed,  and  on  the  other  the 
recorded  copy,  is  the  witness  of  the  transaction.     If  the  origi- 
nal be  lost,  then  the  recorded  copy  becomes  conclusive  on  both 
parties,  at  least  in  a  court  of  law,  with  respect  to  the  convey- 
ance.    To  hold  that  in  case  of  the  loss  of  the  original  deed, 
■either  party  can  set  up  before  the  jury  that  the  recorded  copy 


438       COURT  OF  ERRORS  AND  APPEALS. 

Sisson  V.  Donnelly. 

is  not  a  true  copy,  is,  obviously,  to  let  into  the  transaction  all 
the  uncertainties  of  parol  evidence,  or  to  trust  to  what  Lord 
Coke  calls  "slij)pery  memory."  A  striking  illustration  of 
the  danger  of  such  a  practice  is  afforded  by  the  defence  on 
this  point  in  the  present  case.  Regarded  simply  in  its  legal 
aspect,  the  attempt  is  this:  a  deed  has  been  duly  upon  record 
for  over  twenty  years ;  that  deed  clearly  conveys  but  a  life 
estate ;  both  the  grantor  and  grantee  to  it  are  dead ;  and  now 
the  privies  of  the  grantee  claim  the  right,  on  the  ground  that 
they,  or  those  under  whom  they  derive  title,  have  lost  the 
original  conveyance,  to  show  by  parol  evidence,  that  the  re- 
corded copy  is  not  a  true  copy  of  the  deed,  and  that  such  deed, 
in  point  of  fact,  passed  an  estate  in  fee  simple  instead  of  a 
mere  estate  for  life.  Such  a  jxjwer  would  put  grantors  very 
greatly  in  the  hands  of  fraudulent  grantees.  Such  an  imper- 
fection in  the  system  does  not  exist,  if  we  give  full  effect  to 
the  statutory  provision  already  quoted.  That  provision  de- 
clares in  substance  that  a  mistake  by  omission  can  no  more  be 
predicated  of  the  recorded  copy  of  a  conveyance  than  it  can 
in  the  presence  of  the  deed  itself.  The  effect  of  this  doctrine 
is  that  any  mistake  in  the  record,  in  case  of  the  loss  of  the 
original  deed,  must  be  corrected  by  an  application  to  a  court 
of  equity.  I,  consequently,  think  there  was  error  in  the  ad- 
mission of  evidence  with  a  view  to  show  and  amend  the 
alleged  omission  in  the  record  of  this  deed  in  a  court  of  law» 

But  the  case  at  the  circuit  was  put  upon  a  second  ground 
in  favor  of  the  defence,  which,  if  it  is  well  founded,  renders 
the  error  already  commented  on,  of  no  importance  to  the  con- 
troversy. There  was  a  second  deed  in  evidence,  which  it  wa& 
held,  vested  a  fee  in  the  premises  in  question,  in  the  before- 
named  Mortimer  A.  F.  Harrison,  who,  it  has  been  stated,  was 
the  propositus,  from  whom  the  defendants  claimed  to  derive 
their  title. 

The  deed  here  referred  to  was  dated  9th  day  of  June,  1841, 
and  was  tripartite,  being  between  the  said  Joseph  P.  Peters 
of  the  first  part,  the  said  Harrison  of  the  second  part,  and  one 


JUNE  TERM,  1872.  439> 


Sisson  V.  Donnelly. 

William  Burdon  of  the  third  part.  This  deed  recites  that  the 
said  Peters,  by  deed  dated  the  12th  March,  1841,  had  mort- 
gaged the  premises  in  question  to  the  said  Burdon,  and  that 
said  mortgage,  "  by  a  clerical  omission,"  did  not  contain  words 
of  inheritance,  but  by  its  terms  conveyed  only  a  life  estate  to 
said  Burdon;  that  subsequently  said  Peters  had  conveyed  said 
premises  to  said  Harrison,  subject  to  said  mortgage ;  that  it 
was  intended  that  said  mortgagee  should  take  a  fee  in  said 
property,  and  that  said  Harrison  was  willing  that  said  mort- 
gage should  be  considered  as  vesting  a  fee  in  said  Burdon. 
The  instrument  then  proceeds  to  convey  the  property  in  the 
words  following:  "Now  therefore,  in  consideration  of  the 
premises,  and  in  the  further  consideration  of  the  sum  of  one 
dollar,  to  us,  the  said  parties  of  the  first  and  second  parts,  in 
hand  paid  by  the  said  party  of  the  third  part,  the  receipt 
whereof  is  hereby  acknowledged,  have  granted,  bargained, 
sold,  ratified,  and  confirmed,  and  by  these  presents  do  grant, 
bargain,  sell,  ratify,  and  confirm  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns  forever,  all  and  singular  the 
above  mentioned  and  described  premises  in  the  said  indenture 
of  mortgage  mentioned,  subject  to  the  covenants  and  provisos 
therein  mentioned  and  contained." 

The  mistake  which  exists  in  this  deed  is  clearly  apparent 
upon  its  face.  No  person  can  read  it  and  fail  to  perceive  what 
it  is.  It  arises  from  the  use  of  the  description,  "  the  party  of 
the  second  part,"  instead  of  the  description,  "  the  party  of  the 
third  part,"  as  the  grantee.  That  this  was  a  mere  slip,  no  one  can 
doubt.  Nor  is  there  any  more  uncertainty  as  to  the  fact  that 
the  grantee  was  intended  to  be  the  party  of  the  third  part,  i.  e., 
Burdon,  the  mortgagee.  As  the  deed  now  reads,  Harrison 
is  both  grantor  and  grantee,  and  the  instrument  in  the  clearest 
terms  recites  that  its  sole  purpose  was  to  pledge  the  property 
in  fee  to  Burdon,  under  his  mortgage.  The  intention  of  the 
parties  is  therefore  clear  on  the  face  of  the  conveyance,  the 
only  question  being  whether  or  not  the  deed  can  be  read  so  as 
to  effectuate  such  intention. 

The  rule  of  construction,  which  is  universal  and  is  appli- 


440       COURT  OF  ERRORS  AND  APPEALS. 

Sisson  V.  Donnelly. 

cable  to  conveyances  as  well  as  to  all  other  kinds  of  deeds  is, 
in  the  language  of  Sheppard's  Touchstone,  that  it  "  be  favor- 
able and  as  near  the  minds  and  apparent  intents  of  the  parties 
as  it  possibly  may  be,  and  the  law  will  permit."  Shep.  Touch., 
ch.  5,  p.  85.  This  has  ever  since  and  in  a  great  multitude  of 
cases,  been  recognized  as  the  leading  canon  in  giving  effect  to 
€very  variety  of  written  instruments.  In  Cholmondeley  v. 
Clinton,  2  Jac.  &  W.  1,  Sir  T.  Plumer,  Master  of  the  Rolls, 
states  the  rule  almost  in  the  same  terms.  He  says  :  "  That  the 
primary  object  of  inquiry  is  the  intention  of  the  parties,  and 
that  where  that  is  on  the  face  of  the  instrument,  clearly  and 
satisfactorily  ascertained,  and  found  not  to  be  contrary  to  anv 
rule  of  law,  the  court  is  bound,  if  the  words  will  admit  of  a 
construction  conformable  to  the  intention,  to  adopt  that  con- 
struction, however  contrary  it  may  be  to  technical  meaning 
and  inference."  There  is  a  long  line  of  decisions  which  are 
illustrative  of  the  doctrine  that  the  words  which  are  used  will 
be  controlled  by  an  intention  clearly  expressed  in  the  instru- 
ment to  be  expounded.  Among  these  the  following  occupy  a 
])rominent  place:  Walsh  v.  Trevanion,  15  Ad.  &  El.  {N.  S.) 
733 ;  3Ioore  v.  Magrath,  1  Cowp.  9 ;  Thorpe  v.  Thorpe,  1  Ld. 
Rayni.  235. 

It  will  be  observed  that  by  the  limitations  of  the  rule 
itself,  the  intention  is  to  be  enforced  whenever  "the  law  will 
permit."  I  take  that  to  mean  that  the  intention  will  prevail 
whenever  such  intention  is  unmistakably  manifested,  hav- 
ing regard  to  all  parts  of  the  instrument,  unless  the  law 
requires  the  use  of  technical  terms  to  effectuate  such  inten- 
tion, or  unless  such  intent  is  contrary  to  legal  rules.  The 
first  of  these  classes  of  cases  is  aptly  exemplified  by  the  im- 
perfect form  of  the  deed  to  which  I  first  called  attention.  It 
created  but  a  life  estate,  and  it  was  insisted  that  the  intention 
was  to  create  a  fee;  but  such  intention  could  not  have  been 
carried  into  effect,  no  matter  how  plainly  apparent,  because 
the  law  requires  the  use  of  certain  terms  of  art  in  the  crea- 
tion of  a  fee  simple.  So,  as  an  illustration  of  the  second 
branch  of  the  exception,  "  if  one  gives  land  to  another  and 


JUNE  TERM,  1872.  441 


Sisson  V.  Donnelh 


his  heirs  for  twenty  years,  in  that  case  the  executor,  and  nob 
the  heir,  shall  have  that  land  after  the  death  of  him  to  whom 
it  is  given.''  Shep.  Touch.  86.  But,  unless  in  these  instances,, 
where  artificial  terms  are  requisite,  or  an  attempt  is  made  to  do 
something  inconsistent  with  established  {)rinciples,  I  am  not 
aware  of  any  exception  to  the  rule  that  the  intention  of  the 
party  must  prevail.  There  appears  to  be  nothing  technical  in^ 
legal  regulations  respecting  the  description  of  the  parties  to^ 
written  instruments.  Unless  a  misdescription  in  this  particu- 
lar renders  a  deed  uncertain  as  to  its  meaning,  such  defect  is 
of  no  consequence.  A  plain  misnomer  can  do  no  hurt,  the  only 
question  being  whether  it  is  clear  who  is  intended.  The 
authorities  strongly  favor  this  common  sense  result.  It  has 
been  decided  that  a  mistake  in  the  christian  name  is  imma- 
terial, if  the  deed  explains  who  is  intended.  "  A  deed,"  says 
Fei-kins,  §  36,  "  to  Robert,  Bishop  of  E.,  will  be  good,  though 
his  real  name  is  Roland."  So  where  a  deed  purported  to  be 
tliat  of  a  married  woman,  her  name  only  appearing  as  grantor^ 
but  it  was  signed  by  her  and  her  husband,  it  was  held  to  be 
good  as  a  grant  of  husband  as  well  as  the  wife.  Elliott  v.. 
Sleeper,  2  N.  Hamp.  525.  And  in  the  often  quoted  case  of 
Lord  Say  and  Seal,  10  3Iod.  40,  an  omission  by  an  evident 
mistake  of  the  name  of  the  grantor  in  a  deed  of  bargain  and 
sale,  was  supplied  by  intendment,  "and  the  court  was  of  opin- 
ion that  this  deed  ])assed  the  freehold,  because  such  was  the 
intention  of  it."  I  think  it  is  not  reasonably  to  be  denied, 
that  if  the  name  of  a  party  which  has  been  altogether  omitted 
in  the  operative  part  of  a  deed,  can  be  inserted,  when  read  by 
the  court,  on  the  ground  that  the  meaning  of  the  instrument 
to  that  effect  is  clear,  from  the  same  consideration,  the  errone- 
ous designation  of  the  grantee  may  be  rectified.  In  my  opin- 
ion, the  deed  under  consideration  is  to  be  read  as  though  the 
grantee  was  described  according  to  what  the  parties  plainly 
meant,  as  the  party  of  the  third  part.  Under  this  construc- 
tion, no  title  to  the  premises  in  dispute  ever  came  to  the  de- 
fendants by  the  operation  of  this  tripartite  deed. 

This  result  renders  it  unnecessarv  to  discuss  the  further 


442       COURT  OF  ERRORS  AND  APPEIT^S. 

.State,  Brittin  et  al.,  v.  Blake  et  al. 

■question  as  to  what  would  have  been  the  effect  of  this  latter 
deed  if  the  court  had  been  constrained  to  enforce  it  according 
to  its  letter.  I  will  merely  remark,  that  it  has  not  seemed  to 
me  that  such  a  construction  would  have,  in  any  degree,  fur- 
thered the  defence.  In  such  event,  the  grantee,  Harrison, 
would  have  taken  the  fee  in  trust,  defeasible  on  the  payment 
of  the  money  secured  by  the  mortgage.  A  solid  defence  could 
not  have  been  rested  on  this  foundation. 

The  above  views  are  decisive  of  the  case  as  it  now  stands 
before  this  court.  It  is  not  necessary  to  pursue  other  topics 
which  were  embraced  in  the  argument  of  the  respective  coun- 
sel. The  facts  set  up  by  way  of  defence  at  the  circuit  are  of 
equitable  cognizance,  and  they  are  of  no  avail  in  a  court  of  law. 

I  am  of  opinion  that  the  judgment  in  the  court  below  should 
be  reversed. 

For  reversal — The  Chief  Justice,  Dalrimple,  Depue, 
ScuDDER,  Van  Syckel,  Woodhull,  Dodd.     7. 

For  affirmance — Clement,  Ogden.     2. 

Cited  in  Warner  v.  Sisson,  2  Stew.  Eq.  141. 


THE  STATE,  WILLIAM  BRITTIN  AND  OTHERS,  PLAINTIFFS 
IN  ERROR,  V.  JOSEPH  BLAKE  AND  OTHERS,  DEFEND- 
ANTS IN  ERROR. 

1.  An  assessment  made  by  the  defendants  as  managers  under  an  act 
approved  April  1st,  1868,  enabling  the  owners  of  certain  swamps  and 
marsh  lands  to  drain  the  same,  having  been  aflSrmed  on  certiorari  by 
the  Supreme  Court  as  to  all  the  prosecutors  excepting  B.,  who  had 
leave  to  apply  to  the  court  to  have  the  assessment  against  him  cor- 
rected, the  assessment  to  stand  in  case  he  failed  to  apply  within  a 
limited  time,  and  judgment  afterwards  entered  against  B.  and  the 
others  for  costs — Held,  that  there  was  no  error  in  this,  the  neces- 
sary inference  from  the  record  being  either  that  B.  had  failed  to 
apply  within  the  time,  or,  that  having  applied,  no  correction  was 
found  necessary. 


JUNE  TERM,  1872.  443 

State,  Brittin  et  al.,  v.  Blake  et  al. 

The  spirit  of  the  maxim,  "  Victus  victori  in  expends  condemnandua 
est,"  has  for  many  years  prevailed  in  our  courts. 

There  was  no  error  in  holding  the  act  which  authorized  the  assess- 
ment to  be  valid,  although  it  provided  for  no  appeal  from  the  deci- 
sions of  the  managers. 

The  constitutional  restriction  on  taking  private  property  without 
compensation,  is  confined  to  a  single  branch  of  the  legislative  author- 
ity, the  right  of  eminent  domain,  and  has  no  application  to  an  assess- 
ment made  under  the  police  powers  of  the  legislature. 
The  validity  of  the  assessment  was  not  affected  by  the  subsequent 
repeal  of  the  act  which  authorized  it. 


In  error  to  Supreme  Court. 

For  former  proceedings  in  this  case,  see  6  Vroom  208 

For  the  plaintiffs  in  error,  A.  W.  Cutler. 

For  the  defendants  in  error,  H.  C.  Pitney. 

The  opinion  of  the  court  was  delivered  by 

WoODHULL,  J.  This  writ  of  error  brings  under  review  a 
judgment  of  the  Supreme  Court,  affirming  an  assessment 
made  by  the  defendants  as  managers,  under  an  act  approved 
April  21st,  1868,  enabling  the  owners  of  swamps  and  marshy 
lands  lying  on  the  Upper  Passaic  and  its  tributaries,  in  the 
counties  of  Morris  and  Somerset,  to  drain  the  same. 

The  first  error  assigned  relates  to  that  part  of  the  judg- 
ment of  the  Supreme  Court,  which  required  the  plaintiffs  in 
certiorari,  who  are  the  plaintiffs  in  this  court,  to  pay  costs  to 
the  defendants. 

By  the  common  law,  costs  were  not  allowed  by  that  name 
to  either  party.  They  were,  however,  always  considered  and 
included  in  the  quantum  of  damages  in  actions  where  dam 
ages  were  given.  The  statute  of  Gloucester,  6  Ed.  I,  ch.  1 
was  the  first  to  give  them,  eo  nomine,  to  the  demandant  in 
a  real  action,  as  the  statute,  3  Hen.  VII,  ch.  10,  was  the  first  to 
allow  them  on  a  writ  of  error.  But  excepting  in  one  j^articu- 
lar  case  under  the  statute  of  Marlbridge,  52  Hen.  Ill,  ch.  6, 


444       COURT  OF  ERRORS  AND  APPEALS. 

State,  Brittin  et  al.,  v.  Blake  et  al. 

no  costs  were  allowed  the  defendant  in  any  shape,  till  the 
statute  23  Hen.  VIII,  ch.  15,  and  several  later  ones,  gave  him,, 
if  he  prevailed,  the  same  costs  as  the  plaintiff  would  have 
had  in  case  he  had  recovered.  The  statutes  of  Gloucester 
and  other  kindred  acts  have  very  generally  received  from  the 
courts  at  Westminster  Hall,  a  liberal  construction;  so  that 
the  maxim  "  Vidus  vidori  in  expensis  eondemnandus  est"  be- 
came at  length,  as  well  established  in  the  English  as  it  was 
in  the  civil  law.  There  can  be  no  doubt  that  the  spirit  of 
this  maxim  has  for  many  years  prevailed  in  our  own  courts. 
3  Bla.  Com.  399;  Hullock  on  Costs,  cA.  1,  §  1 ;  c/i.  11,  §  1 
(124.) 

In  the  case  of  Alter  et  al.  v.  Shuris,  2  Harr.  188,  the  cer- 
tiorari, as  in  the  present  case,  was  prosecuted  under  the  com- 
mon law  jurisdiction  of  the  Supreme  Court ;  its  object  being 
to  set  aside  a  discharge  by  the  Court  of  Common  Pleas,  of 
an  insolvent  debtor.  The  question  was  whether  costs  should 
be  allowed  to  the  defendant  in  certiorari  on  affirmance  of  his 
discharge.  This  question  Chief  Justice  Hornblower  answers 
in  the  affirmative,  citing  in  support  of  his  conclusion  the  prin- 
ciples and  practice  of  the  English  courts  as  well  as  the  decis- 
ions of  our  own.  "  These  decisions,"  he  remarks,  "  are 
sufficient  to  warrant  us  in  giving  costs  in  this  case.  Courts 
of  common  law  have  long  exercised  an  equitable  power  in 
matter  of  costs.  There  is  no  statute  giving  costs  on  granting 
new  trials,  putting  off  causes,  failing  in  applications  made  to 
the  legal  and  discretionary  powers  of  the  court;  and  yet, 
costs  in  such  cases  are  constantly  ordered  to  be  paid.  These 
writs  of  certiorari  are  in  the  nature  of  writs  of  error,  and  costs 
upon  them  are  clearly  within  the  spirit  and  equity  of  the 
statutes  giving  costs  in  error." 

Mr.  Justice  Southard,  in  Hann  v.  McCormick,  1  South. 
109,  declares  it  to  be  a  general  principle  that  the  prevailing 
party  in  suits,  in  all  courts  of  law,  is  entitled  to  costs.  It  is 
clear  then,  both  upon  the  principles  of  the  common  law  and 
from  the  practice  and  decisions  of  our  courts,  that  the  Supreme 


JUNE  TERM,  1872.  445 

State,  Brittin  et  al.,  v.  Blake  et  al. 

Court  did  not  err  awarding  costs  to  the  defendants  in  this 
case,  if  they  were  in  fact  the  prevailing  party. 

That  the  court  below  regarded  them  as  such,  is  manifest, 
and  it  seems  equally  clear  that  upon  any  fair  interpretation 
of  the  result  of  the  proceedings  of  the  prosecutors,  they  must 
be  regarded  as  the  vanquished  party,  and  completely  within 
the  range  of  the  maxim,  "  Vidus  victori  in  expensis  condem- 
nandus  est."  It  is  true,  the  Supreme  Court  in  affirming  the 
assessment  with  costs,  except  William  Brittin,  whose  assess- 
ment they  direct  to  be  corrected.  This  would,  of  course,  sug- 
gest a  doubt  whether,  under  such  circumstances,  there  could 
properly  be  any  judgment  entered  against  Brittin  for  costs. 
But  upon  examining  the  record  it  will  appear  that  Brittin 
merely  had  leave  to  apply  for  the  correction  within  a  limited 
time,  and  that  in  default  of  such  application  the  assessment 
should  stand  in  all  things  affirmed  as  to  him  and  the  land  as- 
sessed in  his  name.  Whether  or  not  such  application  within, 
the  time  limited  was,  in  fact,  made  by  Brittin,  or  in  his  behalf, 
does  not  appear.  The  judgment  for  costs  being- entered  against 
all  the  prosecutors,  including  Brittin,  the  necessary  inference 
is,  that  he  either  failed  to  apply  in  accordance  with  the  order 
of  tlie  court,  or  that,  having  applied,  no  correction  was  found 
necessary. 

In  eitiier  case  the  judgment,  as  to  costs,  must  be  held  to  be 
good  against  Brittin,  as  well  as  against  the  other  {)jrosecutors. 

The  second  and  third  assignments  of  error  call  in  question 
the  constitutionality  of  the  act  under  which  the  assessment 
was  made.  It  is  insisted  on  the  part  of  the  plaintiffs  in  error, 
that  this  act  is  unconstitutional,  in  the  first  place,  because  it 
gives  no  appeal  to  the  parties  assessed. 

The  second  section  of  the  act  makes  it  the  duty  of  the 
managers  to  estimate,  according  to  their  best  judgment,  the 
cost  of  removing  the  obstructions  in  the  river  and  its  tribu- 
taries, and  of  widening,  deepening,  and  straightening  the 
channels  thereof,  if  in  their  opinion  required,  and  having 
made  such  estimate,  to  assess  upon  the  owners  of  the  land 
the  amount  of  it,  together  with  the  necessary  expenses,  ac- 

YoL.  VII.  28 


446        COURT  OF  ERRORS  AND  APPEALS. 

State,  Brittin  et  al.,  v.  Blake  et  al. 

cording  to  their  judgment  of  the  benefit  which  will  accrue  to 
each  of  said  owners,  by  the  draining  of  their  lands.  The  ob- 
jection now  under  consideration  is,  not  that  the  act  invests  the 
managers  with  unlawful  powers,  but  that  having  confided  to 
their  discretion  and  judgment  the  important  matters  just  stated, 
it  makes  their  decision  upon  them  final. 

It  is  not  easy  to  understand  how  this  can  be  supposed  to 
affect  tlie  validity  of  the  act. 

The  constitution  being  entirely  silent  on  the  subject,  whether 
an  appeal  should  be  given  or  withheld,  it  was  a  matter  resting 
exclusively  in  the  legislative  discretion,  even  if  that  discretion 
has  been  unwisely  exercised  in  this  case,  which  is  by  no  means 
admitted.  The  error  is  quite  beyond  the  reach  of  judicial  cor- 
rection. One  consideration  which  may  very  probably  have 
influenced  the  legislature  to  withhold  an  appeal  from  the  de- 
cision of  the  managers,  was  the  fact  that  they  were  to  be  chosen 
by  the  owners  themselves.  But  however  this  may  have  been, 
it  is  certain  that  our  legislatures  have  always,  without  question 
or  complaint,  exercised  the  right  in  similar  cases,  to  grant  or 
withhold  an  appeal  at  their  pleasure.  This  was  done  in  t«he 
act  of  1783,  relating  to  the  drainage  of  meadow  ground,  and 
in  the  act  of  1788,  to  enable  the  owners  of  the  tide  swamps 
and  marshes  to  improve  the  same.  Wils.  Laws  382 ;  Fat. 
Latcs  84. 

The  act  last  cited  provided  for  the  appointment,  by  the 
Court  of  Common  Pleas,  of  three  or  more  commissioners  to 
survey  the  swamps  or  marsh,  and  lay  out  the  necessary  works. 
It  provided  also  for  the  election  by  the  land  owners,  of  mana- 
gers to  estimate  the  expenses  of  the  necessary  works,  and  to 
assess  them  ratably  upon  the  land  owners;  and  also  for  the 
election  of  three  or  more  indifferent  men  to  value  the  swamps 
or  marsh.  From  the  proceedings  of  the  commissioners,  the 
act  gives  an  appeal,  but  gives  none  from  the  decision  of  those 
who  were  to  value  the  land,  nor  from  the  proceedings  of  the 
managers  who  were  to  make  the  assessments. 

Instances  of  a  similar  exercise  of  the  legislative  discretion, 
might  be  multiplied  almost  indefinitely.  They  may  be  found 
not  only  in  the  numerous  acts  for  the  improvement  of  swamps 


JUNE  TERM,  1872.  447 


State,  Brittin  et  al.,  v,  Blake  et  al. 

and  meadows,  but  in  many  others,  such  as  the  small  cause  act, 
which  expressly  denies  an  appeal  in  certain  cases — in  our  road 
laws,  and  in  the  charters  of  municipal  and  other  corporations. 

There  was  no  error  therefore,  in  holding  the  act  to  be  valid, 
although  it  gives  no  appeal  to  the  parties  assessed. 

The  next  objection  to  the  validity  of  the  act  is,  that  it  vio- 
lates t!ie  constitutional  provision,  which  forbids  the  taking  of 
private  property  for  public  use  without  just  compensation. 

If  the  assessments  and  other  means  and  instruments  author- 
ized by  this  act  in  furtlierance  of  the  intended  improvement, 
are  to  be  referred,  as  they  usually  and  I  think  properly  are, 
to  the  general  police  powers  of  the  legislature,  it  seems  clear, 
that  the  objection  now  under  consideration  can  have  no  weight 
in  the  decision  of  this  case.  For  it  is  well  settled  that  the 
restriction  on  taking  private  property  without  compensation, 
is  confined  to  a  single  branch  of  the  legislative  authority — the 
right  of  eminent  domain — and  has  no  application  either  to  the 
taxing  power  or  to  the  police  powers  of  the  legislature.  Sedg. 
Con.  Law.  499-502,  and  cases. 

Another  answer  to  this  objection  at  least  equally  conclusive 
is,  that  acts  of  the  same  character  as  the  one  now  drawn  in 
question,  not  differing  from  it  materially  either  in  principle 
or  structure,  authorizing  similar  improvements  to  be  effected 
by  the  use  of  almost  precisely  the  same  kind  of  means,  have 
stood  upon  our  statute  books  for  more  than  a  century,  ac- 
quiesced in  by  the  people,  unchallenged  by  the  bar,  and  tacitly 
if  not  expressly  sanctioned  by  our  courts.  I  concur  in  the 
views  expressed  by  Mr.  Justice  Van  Syckel  in  delivering  the 
opinion  of  the  Supreme  Court  in  this  case.  "  This  branch  of 
legislative  power,"  he  remarks,  "  which  regulates  the  con- 
struction of  ditches  and  sewers  and  the  drainage  of  meadows 
and  marshy  lands,  has  been  exercised  so  long,  and  is  so 
fully  recognized,  that  it  is  now  too  late  to  call  it  in  question. 
It  is  clearly  affirmed  in  the  Tide  Water  Company  v.  Coster, 
and  cannot  be  opened  to  discussion."  To  show  how  fully 
the  reference  to  the  case  of  the  Tide  Water  Company  v.  Coster 
is  sustained,  I  cite  the  very  explicit  language  of  the  present 


448       COURT  OF  ERRORS  AND  APPEALS. 

State,  Brittin  et  al.,  v.  Blake  et  al. 

Chief  Justice  in  delivering  the  opinion  of  the  court  in  that 
case.  He  says :  "  But  the  regulations  established  by  the  legis- 
lative power,  whereby  the  owners  of  meadow  lands  are  com- 
pelled to  submit  to  an  equal  burthen  of  the  expense  incurred 
in  their  improvement,  are  rules  of  police  of  the  same  character 
as  provisions  concerning  party  walls  and  partition  fences.  Ta 
these  cases  therefore,  the  principle  upon  which  the  decision  of 
the  present  case  rests,  is  not  to  be  extended."  3  C.  E.  Oreen 
531. 

The  only  question  remaining  to  be  considered  is  that  raised 
by  the  fourth  assignment  of  error,  namely,  as  to  the  effect  of 
the  repeal  of  the  act  under  which  the  assessment  was  made. 
It  is  insisted  by  the  plaintiffs  in  error  that  in  consequence  of 
this  repeal,  the  assessment  is  no  longer  enforceable,  and  should 
have  been  declared  void  by  the  Supreme  Court.  The  repeal- 
ing act  was  passed  March  16th,  1870,  {Laics,  1870,  p.  602,) 
excepting  and  reserving,  however,  all  property,  rights,  privi- 
leges, matters  and  things,  liabilities,  agreements  or  responsi- 
bilitias  legally  acquired,  incurred,  assumed,  performed  or  made 
under  or  by  virtue  of  the  act  so  repealed. 

Upon  this  part  of  the  case,  I  adopt  the  conclusion  and  the 
language  of  the  opinion  delivered  in  this  case  in  the  Supreme 
Court,  and  already  referred  to,  namely,  that  "  the  saving  clause 
in  the  enactment  shields  the  assessment  made  before  the  repeal 
from  its  operation.  The  assessment  was  perfected,  and  the 
liens  had  attached,  and  the  remedy  to  collect  it  must  also  inhere 
as  an  incident  essential  to  the  enjoyment  of  the  right  saved." 

There  was  no  error  in  holding  the  assessment  valid,  not- 
withstanding the  repeal  of  the  act  which  authorized  it. 

The  judgment  of  the  Supreme  Court  is  affirmed. 

For  affirmance — The  Chancellor,  Chief  Justice,  Dal 
SIMPLE,  Depue,  Woodhull,  Clement,  Dodd,   Ogden^ 
Wales.     9. 

For  reversal — None. 

Cited  in  WiUiams  v.  Allen,  5  Stew.  Eq.  485. 


JUNE  TERM,  1872.  449 


Edwards  et  al.  v.  Elliott. 


NELSON  EDWAEDS  ET  AL.  v.  GEORGE  W.  ELLIOTT. 

1.  In  an  executory  contract  to  build  a  vessel  to  be  paid  for  in  instal- 
ments, as  the  work  progresses,  the  title  remains  in  the  builder  until 
the  work  is  completed  and  delivered. 

2.  Where  by  the  terms  of  the  contract,  when  an  instalment  was  paid,  the 
vessel,  so  far  as  then  constructed,  was  to  become  the  property  of  the 
purchaser — Held,  that  the  burden  is  on  him  to  show  the  time  of  pay- 
ment, and  that  his  title  vested  before  the  lien  attached. 

3.  The  act  for  the  collection  of  demands  against  ships,  steamboats,  and 
other  vessels,  {Nix.  Dig.  576,)  does  not  conflict  with  the  constitution  of 
New  Jersey,  by  violating  the  right  of  trial  by  jury. 


In  error  to  the  Supreme  Court. 

For  former  proceedings  in  this  case,  see  6  Vroom  265. 

An  article  of  agreement  was  made  November  3d,  1866, 
between  Henry  C.  Jeroleman  of  the  first  part,  and  Nelson 
Edwards  and  others  of  the  second  part,  for  buildiug  a  schooner 
of  specified  dimensions,  materials,  and  finish,  for  the  consider- 
ation of  $54  per  ton ;  the  builder  to  furnish  all  labor  and 
materials  and  deliver  the  vessel  in  May,  1867.  The  pay- 
ments were  to  be  made  as  follows :  $2500  when  the  keel  was 
laid;  $3000  when  the  frame  was  all  up;  $3500  when  ceiled, 
deck  beams  in,  kneed  off  and  decks  laid;  $3500  when  outside 
planks  were  on  and  squared  off;  $3500  when  the  poop  deck 
was  on ;  $2000  when  ready  for  launching,  and  the  balance 
when  delivered  according  to  contract.  And  it  was  agreed 
tljat  as  the  said  several  instalm-ents  were  paid,  and  upon  the 
payment  of  each  instalment,  the  schooner,  so  far  as  then  con- 
structed, and  the  materials  therein  inserted,  should  be  and 
become  the  property  of  said  Edwards  and  others. 

The  schooner  was  built  at  East  Newark,  Hudson  county, 
N.  J.,  in  the  winter  and  spring  of  1872.  Charles  Elliott, 
and  David  Ripley  and  others,  defendants  in  error,  furnished 
•timber  for  the  vessel,  and  June  19th,  1867,  caused  the  same 


450       COURT  OF  ERRORS  AND  APPEALS. 

Edwards  et  al.  v.  Elliott. 

to  be  seized  by  the  sheriff,  under  "  an  act  for  the  collection  of 
demands  against  ships,  steamboats  and  other  vessels,  approved 
March  20th,  1857,  and  supplement."     Nix.  Dig.  576-81. 

At  the  time  of  the  seizure,  the  schooner  was  unfinished 
upon  the  stocks,  and  had  not  been  launched,  nor  named,  en- 
rolled or  licensed. 

July  2d,  1867,  the  defendants  below,  Edwards,  Woolsey, 
and  Collins,  gave  bond  to  Elliott,  Ripley  and  others,  lien 
claimants,  for  §4894.32,  under  section  12  of  the  above  act,^ 
and  the  vessel  was  discharged  from  seizure. 

Elliott's  Bill  was  §201.70,  for  chestnut  timber  furnished  in 
November,  1866.  Ripley's  bill  was  $2245.46,  for  oak,  pine,^ 
&c.,  furnished  between  January  15th  and  May  10th,  1867. 

An  action  was  brought  in  the  Supreme  Court  on  the  bond. 
The  defendants  demurred.  The  demurrer  was  overruled. 
The  defendants  afterwards  filed  special  pleas.  A  special  ver- 
dict was  rendered,  and  judgment  thereon  entered  in  the 
Supreme  Court.  A  writ  of  error  on  said  judgment  was 
issued,  and  returned  to  this  court. 

Eor  plaintiffs  in  error,  D.  McMahon,  of  New  York. 

For  defendant  in  error,  A.  Q.  Keashey. 

The  opinion  of  the  court  was  delivered  by 

ScUDDER,  J.  Upon  the  special  verdict  rendered  in  thi& 
cause,  the  Supreme  Court  has  adjudged,  as  appears  by  the 
record  returned,  that  the  act  entitled,  "An  act  for  the  collec- 
tion of  demands  against  ships,  steamboats,  and  other  vessels," 
approved  March  30th,  1857,  is  valid  and  constitutional, 
and  that  Nathaniel  Ellis  and  Henry  Jeroleman,  the  builders 
of  said  vessel,  were  the  owners  thereof,  and  competent  to 
charge  it  with  liens,  and  that  the  respective  claims  of  the 
plaintiffs  were  subsisting  liens  under  the  laws  of  the  State  of 
New  Jersey,  on  the  said  vessel  at  the  time  of  exhibiting  the 
same,  and  that  the  accounts  claimed  by  the  plaintiffs  were  due 


JUNE  TERM,  1872.  451 

Edwards  et  al.  v.  Elliott. 

in  this  suit.  Errors  are  assigned  upon  the  several  points  of 
the  judgment. 

I  will  consider  first  the  construction  of  the  statute  in  its 
application  to  the  facts  in  this  case  as  they  appear  on  the 
record,  assuming  its  validity;  and  next  the  validity  or  consti- 
tutionality of  the  act,  so  far  as  it  affects  this  action. 

The  suit  is  upon  the  bond  given  by  the  defendants  to  the 
plaintiffs  below,  to  discharge  the  vessel  from  the  seizure  of  the 
sheriff.  This  bond  is  compulsory,  in  invitum  put  upon  them 
by  the  statute  before  they  can  take  their  property  from  the 
custody  of  the  law.  They  should  not  therefore  be  shut  out 
from  any  defence  which  they  have  to  the  merits,  and  which 
they  have  pleaded  and  presented  to  the  court  with  proper 
diligence,  and  without  waiver. 

The  condition  of  the  bond  is,  that  the  obligors  shall  pay  the 
amount  of  all  such  claims  and  demands  as  shall  have  been 
exhibited  to  said  commissioner,  which  shall  be  established  to 
be  subsisting  liens  upon  said  vessel,  pursuant  to  the  provisions 
of  said  act,  at  the  time  of  exhibiting  the  same  respectively. 
There  can  be  no  subsisting  lien,  if  the  provisions  of  the  act 
have  not  been  met,  or  if  the  act  itself  is  a  nullity.  These  par- 
ticulars must  be  established  by  the  plaintiffs,  when  challenged 
and  denied  in  proper  legal  form  by  the  defendants,  and  this 
defence  is  open  to  them  by  the  very  terms  of  the  condition  of 
the  bond. 

1.  Are  these  claims  subsisting  liens  under  the  statute,  assum- 
ing its  validity? 

It  is  insisted  in  opposition,  that  the  two  several  debts  in  the 
declaration  mentioned  were  not  contracted  by  any  master, 
owner,  agent,  or  consignee  of  said  schooner.  The  timber  was 
bought  for  the  vessel  by  Jeroleman,  who  was  the  contractor 
and  builder.  It  is  said  he  was  only  the  builder,  not  the 
master,  owner,  agent  or  consignee. 

The  vessel,  when  seized  by  the  sheriff,  was  on  the  stocks, 
in  the  possession  of  Jeroleman,  to  be  built  and  finished  under 
his  contract  with  Edwards  and  others,  above  stated.  The 
work  was  all  done,  and  the  materials  furnished  by  him.     It 


452      COURT  OF  ERRORS  AND  APPEALS. 

Edwards  et  al.  v.  Elliott. 

was  not  eompleted,  not  delivered,  and  the  title  remained  in 
the  Builder,  unless  there  is  some  special  condition  in  the  con- 
tract which  alters  the  general  principle  of  law.  See  the  cases 
cited  in  the  opinion  delivered  in  the  Supreme  Court,  especially 
West  Jersey  R.  R.  Co.  v.  Ti'enton  Car  Works,  3  Vroom  517, 
decided  in  this  court  June  Term,  1866,  holding,  that  in  the 
case  of  an  executory  contract  for  the  sale  of  an  article  not  in 
existence,  but  to  be  manufactured,  even  when  the  contract 
price  is  paid  in  advance,  no  title  passes  until  the  thing  is  com- 
pletely finisiied,  and  is  either  delivered  to  the  orderer  or  is 
apj)ropriated  to  his  benefit,  or  set  apart  for  him,  or  is  accepted 
by  him. 

It  is  claimed  that  there  has  been  a  delivery,  appropriation 
and  acceptance  under  the  terms  of  the  contract.  The  only 
part  of  the  contract  that  can  have  this  effect  is  the  express 
provision,  that  from  time  to  time,  as  the  several  instalments 
were  paid  by  the  parties  for  whom  the  vessel  was  built,  and 
upon  the  payment  of  each  instalment,  the  said  schooner,  so 
far  as  then  constructed,  and  the  materials  therein  inserted, 
shall  be  and  become  the  property  of  the  said  parties  of  the 
second  part. 

This  is  an  agreement,  that  on  payment  of  the  first  instal- 
ment, and  of  each  succeeding  instalment,  the  general  prop- 
erty, in  so  mucii  of  the  vessel  as  is  then  constructed,  shall 
vest  in  the  purchasers.  It  is  not  necessary,  therefore,  to  do 
more  than  again  refer  to  the  authorities  cited  in  the  opinion 
of  the  Supreme  Court,  upon  the  effect  of  a  stipulation  in  an 
executory  contract  to  pay  certain  instalments  as  the  work 
progresses.  A  summary  and  review  of  all  the  important 
cases  ujjon  this  point  will  be  found  in  the  brief  of  counsel, 
and  in  the  opinion  of  Justice  Denio,  in  Andrews  v.  Durant, 
1  Kern.  35.  This  last  case  denies  the  authority  of  Woods 
V.  Russell,  5  Barn.  &  Aid.  942,  and  Clarke  v.  Spence,  4  Ad. 
<i'  El.  448,  which  have  often  been  doubted,  explained  and 
modified,  and  returns  to  the  principles  held  in  the  earlier 
English  cases,  and  in  Laidler  v.  Bui'linson,  2  3fees.  &  Wei. 
602,  that  the   general    rule   is,    that  under  the  contract  for 


JUNE  TERM,  1872.  453 

Edwards  et  al.  v.  Elliott. 

the  building  of  a  vessel  or  other  thing,  no  property  vests  in 
the  person  for  whom  it  k  agreed  to  be  built,  until  it  is  so 
finished  and  delivered.  This  ease  also  holds  that  the  rule  is 
the  same  where  certain  portions  of  tke  contract  price  are 
agreed  to  be  paid,  and  are  paid  by  the  builder  at  specified 
stages  of  the  work ;  and  when  an  agent  of  the  person  for 
whom  the  article  is  to  be  constructed  is  appointed,  and  actu- 
ally does  superintend  and  approve  the  materials  and  work. 
Thus  covering  the  points  wherein  Woods  v.  Russell  and  Clark 
V.  Speuce  are  distinguished  from  the  general  rule. 

In  the  present  case,  our  Supreme  Court  has  decided  that  an 
executory  contract  to  build  a  vessel,  to  be  paid  for  in  instal- 
ments as  the  work  progresses,  the  title  remains  in  the  builder 
until  the  work  is  completed  and  delivered.  The  rule  is  accu- 
rately expressed,  and  is  supported  by  the  weight  of  authority. 

But  in  this  contract  we  have  something  different;  the 
express  stipulation  that  the  property  shall  pass  as  the  several 
instalments  are  paid,  and  it  is  contended  that  upon  tire  pay- 
ment of  an  instalment,  the  builder  ceased  to  be  the  owner,  and 
the  person  who  furnished  materials  to  the  builder  could  have 
no  lien. 

The  true  construction  of  such  contract,  and  its  effect  in  de- 
priving a  party  of  a  lien,  can  be  determined  when  the  question 
arises.  Here,  there  is  no  proof  that  any  instalment  was  paid 
before  all  the  materials  were  furnished  and  the  vessel  seized 
by  the  sheriff. 

The  only  finding  of  the  jury  in  their  special  verdict  upon 
this  point  is,  "  that  the  original  contract  price  for  constructing 
said  vessel  would  have  been  about  ^21,000,  but  said  Jerole- 
man  was  paid  in  excess  of  said  price  about  $1500.  There  is 
no  time  given  and  no  fact  stated  upon  which  an  appropriation 
of  payment  could  be  founded.  The  builder  was  therefore,  in 
law,  still  the  owner  of  the  vessel,  and  the  debts  contracted  by 
him  became  liens  on  the  vessel,  under  the  statute. 

The  burden  of  proof  was  on  the  defendants  to  show  tlieir 
payments  and  the  change  of  title,  if  there  were  any. 

The  next  point  of  exception  is,  that  this  act  was  not  in- 


-i54   COURT  OF  ERRORS  AND  APPEALS. 

Edwards  et  al.  v.  Elliott. 

tended  to  apply  to  vessels  on  stocks,  newly  and  primarily 
Ijuilt.  The  different  particulars  in  t^ie  statute  under  sections 
Ist,  3d  and  8th,  are  cited  to  show  that  an  existing  vessel 
having  a  name,  a  commander,  tackle,  &c.,  is  contemplated,  but 
the  first  section  which  gives  the  remedy,  is  more  general,  and 
by  separating  its  terms,  we  have  a  lien  given  for  a  debt  con- 
tracted by  the  owner  for  work  done,  or  materials  or  articles 
furnished  in  this  state  for  or  towards  the  building  a  ship  or 
vessel.  The  suggestion  of  counsel  that  this  means  rebuilding, 
is  a  substitntion  of  one  thing  for  another  without  authority, 
a  shaping  of  the  statute  to  fit  the  argument.  There  is  no  suffi- 
cient reason  to  suppose  that  the  act  excludes  a  lien  for  build- 
ing a  new  vessel.  It  includes  this,  and  also,  the  repairing, 
fitting,  furnishing  or  equipping  an  existing  vessel.  The  words 
and  terras  may  be  used  disjunctively. 

These  are  the  points  of  objection  to  the  statute,  assuming,  it 
to  be  valid,  but  denying  its  application  to  this  case.  But  it  k 
further  insisted — 

1.  That  this  lien  act  contravenes  the  constitution  and  laws 
of  the  United  States^  conferring  admiralty  jurisdiction  in  the 
federal  courts.     Art.  Sd,  Sec.  2d,  Judiciary  Acts,  1789,  1854.. 

2.  That  it  violates  the  right  of  trial  by  jury  given  by  the 
constitution  of  New  Jersey. 

The  first  of  these  constitutional  objections  was  disposed  of 
on  the  demurrer  to  tiie  declaration.  The  court  overruled  the 
demurrer  and  held  that  the  contract  for  building  a  ship  within 
the  state  is  not  a  maritime  contract,  but  a  contract  for  build- 
ing entirely  under  state  control,  which  may  be  enforced  by  a 
common  law  remedy,  or  by  any  new  remedy  which  the  legis- 
lature may  provide. 

To  avoid  any  misapprehensions,  it  is  however  stated  that 
so  far  as  the  law  is  designed  to  aid  in  the  enforcement  of  a 
maritime  contract  for  whicii  admiralty  may  proceed  in  rem, 
it  is  clearly  in  conflict  with  the  constitution  and  laws  of  the 
United  States. 

Whether  this  last  ruling  conflicts  with  Randall  v.  Roche, 
I  Vroom  220,  it  is  not  necessary  now  to  consider ;  but  it  is 


JUNE  TERM,  1872.  455 


Edwards  et  al.  v.  Elliott. 


sustained  by  the  cases  in  the  United  States  Supreme  Court^ 
cited  in  the  opinion  delivered  in  the  court  below,  and  in  the 
recent  cases.  In  re  Josephine  39  N.  Y.  (12  Tiff.)  19;  Jack- 
son V.  Steam  Propeller  Kinne,  United  States  District  Court  of 
New  Jersey,  Am.  Law  Beg.,  Vol.  8,  470 ;  Vose  v.  Cockcroft,. 
44  iV.  F.  415;  Sheppard  v.  Steele,  43  N.V.  52. 

The  judgment  upon  the  demurrer  is  not  before  us  on  this 
■writ  of  error,  which  brings  up  only  the  judgment  of  the 
Supreme  Court  upon  the  special  verdict.  But  as  this  later 
judgment  also  determines,  in  general  terms,  that  this  act  is 
valid  and  constitutional,  it  may  be  proper  to  repeat  the  quali- 
fication made  in  the  Supreme  Court,  in  deciding  the  demurrer,, 
that  it  is  constitutional  in  its  application  to  this  particular  case- 
of  building  within  the  state. 

Tiie  next  jjoint  urged,  that  this  lien  act  prescribes  a  remedy 
which  makes  no  provision  for  -a  trial  by  jury,  was  pressed 
with  much  earnestness  by  counsel,  mainly  on  the  authority  of 
Parsons  v.  Russell,  11  3Iich.  113;  Greene  v.  Briggs,  1  Curtis 
C.  C.  R.  311,  and  Wynehamer  v.  People,  3  Kern.  378.  The 
last  two  cases  arose  under  acts  for  the  prevention  of  intemper- 
ance, which  were  summary  in  their  proceedings,  confiscating 
liquors,  fining  and  imprisoning  by  quasi  criminal  processes, 
and  were  new  and  anomalous  in  many  of  their  features.  It 
is  sufficient  to  say,  that  they  are  not  applicable  to  the  present 
case,  for  reasons  that  will  hereafter  appear  in  considering  our 
law  with  reference  to  other  existing  statutes.  The  case  of 
Parsons  v.  Russell,  is  under  a  statute  similar  to  ours,  and 
appears  to  be  directly  in  point,  but  it  was  decided  by  a  divided 
court,  with  little  notice  of  other  statutes,  in  pari  materia,  if 
any  there  be  in  that  state,  and  it  is  without  conclusive  au- 
thority or  precedent. 

Tiie  counsel  have  not  found  another  case  of  like  purport. 

On  the  other  hand,  Sheppard  v.  Steele,  43  N.  Y.  52,  decide* 
that  their  lien  law  of  1862,  entitled  "An  act  to  provide  for 
the  collection  of  demands  against  ships  and  vessels,"  which 
is  similar  to  ours,  is  not  unconstitutional  as  infringing  the 
right  of  trial  by  jury.     The  reason  assigned  is  that  liens  were 


456       COURT  OF  ERRORS  AND  APPEALS. 


Edwards  et  al.  v.  Elliott. 


given  in  such  cases  before  the  constitution  of  1846,  which 
were  enforceable  in  equity,  without  a  jury;  and  that  they 
were  not,  therefore,  cases  where,  within  their  constitution, 
{A7't.  I,  §  2,)  a  trial  by  jury  had  theretofore  been  used.  But 
this  is  not  all.  A  fuller  consideration  of  the  opinion  of  the 
court  is  instructive  in  determining  the  present  case.  Its 
statements  condensed  and  generalized,  that  the  legislature 
could  give  a  lien  of  this  kind,  and  in  the  absence  of  any 
statutory  remedy  provided,  equity  would  enforce  it  without  a 
jury,  by  process  older  than  our  constitution,  distinguishes  this 
remedy  from  the  ordinary  issues  in  civil  causes  before  a  jury. 
It  gives  to  us  intimations  of  remedies  in  particular  cases, 
which  have  come  to  us  from  the  civil  law,  and  which  have 
been  used  for  centuries  without  a  complaint  that  they  infringe 
on  the  common  law  right  of  trial  by  jury.  Such  are  all  the 
proceedings  in  courts  of  equity  and  other  courts  adopting  its 
forms.  So  in  admiralty  courts,  in  the  enforcement  of  mari- 
time liens.  So  in  special  cases  by  statutes  in  analogy  with 
these  extraordinary  remedies,  we  have  a  new  and  peculiar 
jurisdiction  conferred.  1  Pa7's.  Mar.  Law  489;  Story^s  Eg. 
Jur.  506,  .121 6. 

Our  colonial  constitution  of  July  2d,  1776,  §  22,  ordained 
that  "the  inestimable  right  of  trial  by  jury  shall  remain  con- 
firmed, as  a  part  of  the  law  of  this  colony,  without  repeal, 
forever." 

Yet,  in  1798,  an  attachment  law  against  absconding  and 
absent  debtors  was  passed,  which  has  the  very  features  which 
are  most  obnoxious  to  the  charges  made  against  this  law,  and 
it  still  stands  upon  our  statute  book,  enforced  daily  in  our 
courts  without  a  question  as  to  its  constitutionality. 

The  goods  of  a  defendant,  upon  affidavit  of  indebtedness, 
&c.,  are  seized,  notice  is  advertised ;  if  he  fail  to  appear,  his 
property  is  sold  by  auditors  and  distributed  among  the  apply- 
ing creditors.  The  defendant  may  thus  be  deprived  of  his 
property  without  a  trial  by  jury.  Who  doubts  the  legality 
•of  this  proceeding?  If  the  defendant  appear,  the  statute 
regulates  the  method  and  the  manner  of  discharging  his  per- 


JUNE  TERM,  1872.  46T 


Edwards  et  al.  v.  Elliott. 


sonal  property  from  the  lien  of  the  attachment.  He  was- 
required  by  the  older  statute  to  enter  into  special  bail;  by 
later  statute  to  give  bond  with  one  or  more  sufficient  sureties,. 
approved  by  the  court,  in  double  the  amount  of  the  personal 
property  attached,  conditioned  for  the  return  of  the  goods,  if 
judgment  be  entered  for  the  plaintiff.  By  this  his  goods  are 
relieved,  and  he  may  plead  and  have  his  trial  by  jury.  This 
is  substantially  the  form  of  remedy  given  to  enforce  the  lien 
against  vessels  under  the  statute  in  controversy. 

Our  present  constitution  of  1844  agrees  substantially  with 
the  old  constitution  in  securing  the  right  of  trial  by  jury.. 
Article  I,  §  7,  ordains  that  the  right  of  trial  by  jury  shall 
remain  inviolate.  It  is  now  said  that  the  recent  law  of  185T 
violates  this  right,  because  it  requires  a  person  to  give  a  bond, 
which,  from  poverty  and  being  unknown,  he  may  be  unable 
to  do,  before  he  can  have  a  trial  by  jury. 

The  requirement  to  give  a  bond  is  for  the  discharge  of  his 
property  from  the  lien  and  custody  of  the  law,  and  then  he 
has  his  trial  by  jury  upon  the  issue,  whether  he  is  a  debtor  or 
not.  He  must  exercise  his  right  under  such  reasonable  regu- 
lations as  the  legislature  may  establish  for  the  security  of 
creditors,  and  there  is  no  violation  of  the  right. 

When  goods  were  taken  in  distress  for  arrears  of  rent,, 
although  they  were  formerly  only  detained  as  pledges  for 
enforcing  the  payment  of  such  rent,  a  more  effective  remedy 
was  provided  by  an  act  of  1795.  After  holding  the  goods 
for  ten  days,  with  notice  of  the  taking,  if  they  were  not 
replevied  they  were  sold  and  the  proceeds  applied  to  the  pay- 
ment of  the  rent.  A  bond  must  be  given  in  replevin  before 
the  goods  are  discharged,  and  before  the  right  to  sell  them 
can  be  tried  by  a  jury,  under  this  statute. 

In  1855,  a  supplement  to  our  practice  act  was  passed,, 
requiring  the  defendant  in  every  action  at  law  to  file  with  his 
plea  an  aflfidavit  that  the  same  is  not  intended  for  the  pur- 
pose of  delay,  and  that  he  verily  believes  he  has  a  just  and 
legal  defence  to  said  action  on  the  merits  of  the  case.  No' 
such  requirement  existed  before  the  constitution  of  1844. 


458       COURT  OF  ERRORS  AND  APPEALS. 

Edwards  et  al.  v.  Elliott. 

If  this  affidavit  is  not  filed  the  defendant's  plea  is  a  nullity, 
judgment  by  default  is  entered,  an  assessment  of  damages  is 
made  by  the  court,  or  by  a  judge  or  clerk  of  the  court  in  vaca- 
tion, and  his  property  is  sold  under  execution.  These  bonds 
and  affidavits  are  regulations  of  the  practice  of  the  courts, 
M-hich  preceded  the  trial,  and  are  in  no  legal  sense  a  violation 
of  the  right.  This  right  of  trial  by  jury  in  civil  causes,  as 
eoramonly  understood  and  as  construed  in  our  courts,  is  the 
right  to  have  all  such  causes  heard  before  a  jury  of  twelve 
men,  according  to  the  usual  process  and  practice  of  the  courts 
of  common  law.  It  is  intended  to  prevent  the  arbitrary 
seizure  and  disposition  of  person  or  property,  and  the  deter- 
mination of  rights  affecting  them,  without  the  regular  and 
orderly  proceedings  of  courts  of  law.  If  a  person  is  arrested, 
he  gives  bond  and  the  right  of  action  is  tried.  If  his  prop- 
erty is  seized,  he  regains  it  by  giving  security.for  its  return  if 
the  right  is  determined  against  him.  In  each  case,  his  right 
•to  a  jury  trial  remains. 

This  act  of  1857,  giving  a  lien  on  vessels,  introduces  no 
new  or  arbitrary  remedy,  but  uses  such  as  is  well  known  and 
used  in  our  law  in  similar  cases,  and  the  right  of  trial  by  jury 
under  its  proceedings  remains  inviolate.  This  conclusion 
appears  to  be  clearly  within  the  construction  which  has  been 
given  to  the  sections  of  the  constitution  of  the  United  States, 
and  the  constitutions  of  other  states,  and  many  statutes  of  like 
import.  See  Sedg.  Stat,  and  Const.  Law  548  ;  1  Bish.  Or. 
Proc.  89*3,  and  notes;  2  Story  Const.  1768 ;  1  Kent  Com. 
{9th  Ed.)  618;  Bonaparte  v.  C.  &  A.  R.  R.  Co.,  Bald.  R. 
205;  McGear  v.  Woodruff,  4  Vroom  213. 

The  judgment  of  the  Supreme  Court  is  affirmed. 

For  affirmance — The  Chancellor,  Bedle,  Scuddee, 
Clement,  Dodd,  Lathrop,  Ogden,  Wales.     8. 

Fur  reversal — None. 


JUNE  TERM,  1872.  459 


Geraghty  et  al.  v.  Hackley. 


JOHN  GEEAGHTY  ET  AL.,  PLAINTIFFS  IN  ERROE,  v.  ED- 
WARD  M.  HACKLEY,  DEFENDANT  IN  ERROR. 


On  error  to  the  Supreme  Court. 

For  proceedings  in  this  ease  and  opinion  of  the  court  below, 
see  5  Vroom  332. 

For  the  plaintiffs  in  error,  J,  Linn  and  JR.  Grilchristf  Attor- 
ney-Greneral. 

For  the  defendant  in  error,  I.  W.  Soudder. 

The  opinion  of  the  court  was  delivered  by 

The  Chancellor.  For  the  reason  stated  in  the  opinion 
of  the  Supreme  Court,  that  the  amount  recovered  in  the  court 
below  was  a  tonnage  duty  imposed  by  the  state  on  vessels 
engaged  in  commerce,  and  therefore  prohibited  by  the  federal 
constitution,  the  judgment  of  the  Supreme  Court  is  affirmed. 
We  agree  with  that  court  in  holding  that  the  imposition  in 
this  case  is  a  tonnage  duty,  and  that  such  duty,  when  imposed 
by  a  state,  is  unconstitutional.  With  these  views,  it  is  not 
necessary  for  us  to  express  any  opinion  on  the  other  grounds 
upon  which  the  decision  of  that  court  is  based. 

For  affirmance  —  The  Chancellor,  Chief  Justice, 
Depue,  Scudder,  Van  Syckel,  Woodhull,  Clement, 
DoDD,  Latheop,  Ogden,  Olden,  Wales.     12. 

For  reversal — None. 
Cited  in  Oeraghty  v.  McMicker,  8  Vr.  530. 


CASES  AT  LAW 


DETEBlflKED  IK  THS 


COURT  OF  ERRORS  AND  APPEALS 


OF  THE 


STATE  OF  NEW  JERSEY, 

AT  NOVEMBER  TERM,  1872. 


HENRY  DOWNEY,  PLAINTIFF  IN  ERROR,  v.  JOSEPH  BOR- 
DEN, DEFENDANT. 

1.  Where  lands  are  devised  in  the  first  instance  in  language  indetermi- 
nate as  to  the  quantity  of  the  estate  from  which  an  estate  for  life  would 
result"  by  implication,  and  words  adapted  to  the  creation  of  a  power 
of  disposal  without  restriction  as  lo  the  mode  of  execution  are 
added,  the  construction  will  be  that  an  estate  in  fee  is  given  ;  but 
where  the  quantity  of  the  estate  is  expressly  defined  to  be  for  life,  the 
superadded  words  will  be  construed  to  be  a  mere  power.  The  dis- 
tinction is  between  a  devise  expressly  for  life,  with  a  power  of  disposi- 
tion annexed,  and  a  devise  in  general  terms  with  such  a  power 
annexed  ;  in  the  former  case  an  estate  for  life  only  passes,  in  the  latter 
a  fee. 

2.  The  testator,  by  his  will,  gave  his  real  and  personal  estate  to  his 
widow  in  general  terms,  and  by  a  subsequent  clause  he  gave  and  be- 
queathed to  her  one-third  of  all  his  estate,  "  that  may  remain  at  the 
time  of  her  death  for  to  dispose  of  as  she  may  see  proper."  The 
remaining  two-thirds,  after  certain  specific  bequests,  he  directed  to  be 
divided  in  equal  shares  among  his  sisters  and  the  heirs  of  a  deceased 
brother.  Held,  that  the  widow  took  an  estate  in  fee  simple  in  the  one- 
third  of  the  lands, 

460 


NOVEMBER  TERM,  1872.  461 

Downey  v.  Borden. 
Oil  writ  of  error  to  the  Supreme  Court. 

The  above  stated  cause  coming  on  to  be  tried  in  the  Ocean 
County  Circuit  Court,  before  His  Honor  Edward  W.  Scnd- 
der,  Judge,  tlie  respective  parties  agreed  that  the  same 
should  be  tried  by  the  court.  The  plaintiffs  offered  in  evi- 
dence a  certified  copy  of  a  deed  from  John  Borden  to  William 
Akins,  dated  March  2d,  1831,  for  the  lands  in  question  in  this 
suit. 

Plaintiffs  also  proved  that  William  Akins  went  into  posses- 
sion of  the  land  in  controversy  about  the  date  of  said  deed, 
.  and  continued  in  the  possession  till  his  death ;  that  he  died 
in  1850,  leaving  Lucy  Akins,  his  widow,  in  possession  of  the 
same,  and  that  she  continued  to  occupy  it  till  her  death ;  she 
died  in  February,  1870,  and  that  William  Akins  died  without 
issue,  leaving  two  sisters  and  children  of  two  deceased  sisters 
and  a  brother,  and  that  the  plaintiffs  in  this  suit  were  first 
cousins  of  Lucy  Akins,  and  her  nearest  of  kin. 

Plaintiffs  offered  a  certified  copy  of  the  will  of  Wil- 
liam Akins,  with  the  probate  and  proofs  of  the  same,  dated 
September  5th,  1850,  and  admitted  to  probate  by  the  surro- 
gate of  the  county  of  Ocean,  on  the  19th  day  of  May,  A.  D. 
1851,  as  follows,  to  wit: 

I,  William  Akins,  of  the  township  of  Brick,  in  the  county 
of  Ocean,  late  the  township  of  Howell,  county  of  Monmouth, 
and  State  of  New  Jersey,  being  of  sound  mind  and  memory, 
blessed  be  God  for  it,  I  do  make  and  publish  this  my  last  will 
and  testament. 

First.  I  recommend  my  soul  to  God  that  gave  it,  and  my 
body  to  the  grave. 

Second.  I  order  and  direct  my  executrix  and  my  executor 
hereinafter  named,  to  pay  out  of  my  movable  estate  all  my 
funeral  expenses  and  just  debts,  as  speedily  as  possible. 

Third.  I  give  and  bequeath  to  my  beloved  wife,  Lucy 
Akins,  all  my  farm  and  plantation  whereon  I  now  dwell, 
and  all  my  meadows  and  beaches,  and  all  my  woodlands,  and 
all  my  rights  in  lands  that  I  now  or  can  own,  or  come  to  my 

Vol.  VII.  29 


462       COURT  OF  ERRORS  AND  APPEALS. 

Downey  v.  Borden. 

•estate  after  my  death,  either  by  will  or  deed,  in  any  lawful 
manner,  for  the  benefit  of  my  estate,  excepting  a  lot  of  meadow, 
<fec.,  which  I  order  and  direct  my  executrix  and  my  executor, 
liereinafter  named,  to  sell  at  public  auction  to  the  highest  bid- 
■der,  for  the  benefit  of  ray  estate ;  also,  all  my  notes  of  hand, 
bonds,  mortgages,  and  book  accounts ;  and  also  so  much  of 
my  household  and  kitchen  furniture  as  she  may  think  she 
€tands  in  need  of  for  Iter  use.  I  also  order  and  direct  my 
executrix  and  my  executor  to  sell  at  public  auction  all  my 
horses,  cattle,  hogs,  and  all  kinds  of  stock  belonging  to  my 
estate — my  carriage,  wagons,  plows,  harrows,  and  every  kind 
of  implement  that  is  attached  to  my  farm  for  the  use  of  farm- 
ing said  farm,  and  all  the  hay,  straw,  and  grain  of  every  kind 
that  may  be  on  said  farm  at  the  time  of  my  decease;  and  also 
my  share  or  part  of  the  schooner  Samuel  F.  Allen,  and  my 
ehare  of  a  scow  that  I  own  in  partnership  with  Colonel 
■James  Osborn ;  also,  I  order  and  direct  positive,  that  after 
•the  first  sale  of  the  hay  and  straw,  that  mo  hay,  straw,  or 
■manure  of  any  kind  shall  not  be  sold  from  off  said  farm,  but 
to  be  used  for  the  benefit.  It  is  my  wish  tl>at  the  timber  that 
Ss  growing  on  the  different  lots  of  woodland  that  belongs  to 
Tuy  estate  should  be  carefully  preserved  for  the  benefit  of  my 
•estate,  to  be  aad  remain  as  is  herein  directed,  so  long  as  she 
remains  my  widow. 

Fourth.  If  my  wife,  Lucy  Akins,  should  marry,  I  order 
^nd  direct  that  she  is  not  to  have,  after  her  marriage,  no 
moneys  belonging  to  my  estate  at  that  time,  but  is  still  to 
have  all  my  lands  and  meadows  as  is  directed  in  the  first  be- 
quest to  her  in  my  will. 

Fifth.  1  also  give  and  bequeath  to  my  beloved  wife,  Lucy 
Akins,  one-third  of  all  my  estate  that  may  remain  at  the  time 
of  her  death,  for  to  dispose  of  as  she  may  see  proper ;  and  the 
other  two-thirds  to  be  divided  as  I  hereinafter  order  and 
■direct. 

Sixth.  I  give  and  bequeath  to  my  nephew,  Benjamin  Lem- 
ming, my  sister  Rebecca's  son,  the  same  amount  of  moneys 
.that  may  come  to  any  one  of  the  heirs  of  my  brother,  Ben- 


NOVEMBER  TERM,  1872.  463 


Downey  v.  Borden. 


jamin  Akins,  deceased ;  and  I  give  to  my  sister,  Mary  Jefferry, 
five  dollars;  to  my  nephew,  William  Parker,  five  dollars; 
to  ray  nephew,  John  Parker,  five  dollars ;  and  the  balance  of 
the  two-thirds  of  my  estate  to  be  divided  in  four  equal  parts 
or  shares,  that  is  to  say :  the  heirs  of  my  brother,  Benjamin 
Akins,  deceased,  one-fourth  part;  my  sister,  Hannah  Shate- 
lear,  one-fourth  part;  my  sister,  Lydia  Ellen,  one-fourth 
part ;  ray  sister,  Sarah  Badby,  one-fourth  part. 

Plaintiifs  also  proved  that  the  defendant,  Henry  Downey, 
was  in  possession  of  the  preraises  in  question,  the  sarae  having 
been  rented  to  hira  by  the  agent  of  the  heirs  of  William  Akins, 
deceased. 

The  defendant  proved  that  William  Akins  died  leaving 

sisters  and  children  of  a  deceased  brother  and  sisters,  named 

^nd  referred  to  in  his  said  will,  as  his  heirs.     The  court  gave 

judgment  that  the  plaintiffs  were  jointly  entitled  to  the  one 

undivided  third  part  of  the  premises  in  question. 

The  opinion  of  the  Supreme  Court  is  reported  in  6  Vroom 
74. 

For  the  plaintiff  in  error,  W.  H.  Vredenburgh  and  C.  Parker, 

1.  The  question  as  to  every  will  is,  what  was  the  intention 
of  the  testator,  as  derived  from  his  language  and  the  circum- 
stances surrounding  hira?  And  the  stringency  of  interpreta- 
tion differs  with  the  inexpertness  of  testators  and  draughtsmen. 
2  Bed/,  on  Wills  420,  §§  30, 432,  433  ;  Park  v.  Park,  9  Paige 
107;  Jackson  v.  Housel,  17  Johns.  281;  De  Kay  v.  Irving, 
5  Denio  646 ;  Prentiss  v.  Doughty,  3  Bradf.  Sur.  R.  287 ; 
Malcolm  v.  Malcolm,  3  Cush.  472. 

2.  Heirs  are  not  to  be  disinherited  unless  the  intent  to  do  so 
is  very  clearly  expressed.  2  Jarman  762,  Rule  V;  1  Roper 
671 ;  Leigh  v.  Savidge,  1  McCarler  134. 

3.  The  wife,  by  this  will,  was  to  take  a  life  estate  in  all 
the  property,  with  liberty  to  use  up  what  she  needed. 


464      COURT  OF  ERRORS  AND  APPEALS. 

Downey  v.  Borden. 

The  last  words  of  the  third  section,  "  to  be  and  remain  as- 
herein  directed  so  long  as  she  remains  my  widow/'  qualify  the 
whole  estate.  Tiie  digression  after  the  bequests  made,  are 
parenthetic. 

Besides,  the  directions  that  the  hay,  straw  and  manure  shall 
not  be  sold  from  off  tlie  farm,  but  be  used  for  its  benefit,  and 
that  the  timber  shall  be  preserved  for  the  good  of  the  estate, 
show  that  the  testator  meant  not  to  devise  away  his  farm 
longer  than  for  his  wife's  life.  And  so  does  his  devise  of  two- 
thirds  among  his  heirs. 

4.  Testator  did  not  mean  to  vest  any  part  of  his  estate 
absolutely  in  his  wife  during  her  life. 

The  fifth  clause  is  said  to  pass  this  absolute  estate.  But  it 
does  not  concern  one-third  of  the  whole  estate,  but  only  of 
what  may  remain  at  the  time  of  the  wife's  death.  No  article 
was  hers  during  her  life.  Nor  was  the  farm  hers  to  convey- 
or to  have  set  off.  She  could  cut  no  timber,  nor  sell  any  hay^ 
straw  or  manure  off  from  it.  Surely,  this  indicates  that  tes- 
tator meant  to  give  her  no  greater  estate  than  that  before. 

How  could  an  estate,  in  what  should  remain  at  her  death^ 
vest  during  her  life?  Neither  that  one-third,  or  the  other 
two-thirds  were  determinable  till  her  death.  Nor  did  one 
vest  more  than  the  other. 

The  phraseology  passes  all  three-thirds  to  her,  one-third  for 
her  disposal,  two-thirds  for  division  among  the  heii's,  accord- 
ing to  her  husband's  will. 

No  estate  then  passing  by  the  will  to  her  except  the  life 
estate,  the  case  comes  directly  under  the  law  cited  in  the 
opinion  of  the  court  below.  The  wife  made  no  will,  and 
therefore  no  "  disposal "  of  the  one-third.  The  life  estate 
ceased  at  her  death,  and  the  heirs  take. 

It  is  an  express  life  estate.  The  two  sections  give  the  land^ 
whether  she  remains  a  widow  or  not. 

The  testator  meant  this.  Full  force  is  given  to  this  part 
of  the  will,  by  holding  that  it  gave  the  wife  the  power  of  dis- 
posing of  what  was  left  at  her  death.  The  testator  said^ 
"  Let   her  dispose  of  the  one-third ;  I  dispose  of  the  two- 


NOVEMBER  TERM,  1872.  465 

Downey  v.  Borden.  ^ 

thirds."  His  thought  was,  "  I  give  her  all  for  life.  What 
at  her  death  ?  Why,  I  give  her  one-third  to  dispose  of 
then,  and  I  will  away  two-thirds,  she  being  trustee  of  it, 
now,  to  take  eiFect  then."  Certainly,  the  opposite  construc- 
tion is  not  dear.     And  if  not,  the  heirs  should  hold. 

Later  authorities,  both  in  England  and  this  country,  lean 
strongly  towards  giving  force  to  the  intent  of  the  testator, 
however  rudely  expressed,  in  preference  to  adherence  to 
ancient  technical  rules. 

For  the  defendant  in  error,  A.  O.  McLean  and  F.  Kingman, 

The  opinioH  of  the  court  was  delivered  by 

Depue,  J.  The  plaintiffs  are  the  heirs-at-law  of  Lucy 
Akins,  deceased.  The  defendants  make  title  under  the  heirs- 
at-law  of  the  testator,  William  Akins,  deceased.  It  is  too  ob- 
vious to  admit  of  debate,  that  Lucy  Aikins,  under  the  third 
clause  in  the  will,  would  have  taken  only  an  estate  for  life  in 
the  whole  of  the  lands  whereof  her  husband  died  seized.  The 
only  real  subject  matter  of  controversy,  relates  to  her  estate 
in  the  one-third  part  thereof,  by  force  of  the  fifth  clause  in 
the  will,  which  is  in  the  following  words,  viz. : 

"  Fifth — I  also  give  and  bequeath  to  my  beloved  wife, 
Lucy  Akins,  one-third  of  all  my  estate  that  may  remain  at 
the  time  of  her  death  for  to  dispose  of  as  she  may  see  proper, 
and  the  other  two-thirds  to  be  divided  as  I  hereinafter  order 
and  direct." 

By  the  succeeding  clause,  "  the  balance  of  the  two-thirds  " 
of  his  estate  was  devised  to  the  three  sisters  of  the  testator,  and 
the  heirs  of  a  deceased  brother.  The  contention  of  the  defend- 
ant is,  that  upon  the  construction  of  the  entire  will,  Lucy 
Akins  took  a  life  estate  only  in  the  lands  of  the  testator,  with 
a  power  of  appointment  over  the  one-third  part  thereof,  and 
that  not  having  exercised  the  power,  that  portion  of  the  tes- 
tator's estate  descended  to  the  defendants  as  his  heirs-at-law, 
.as  lands  whereof  he  died  intestate. 

It  will  be  observed  that  the  estate  for  life  which  the  widow 


466       COURT  OF  ERRORS  AND  APPEALS. 

Downey  v.  Borden. 

became  entitled  to  under  the  will,  in  all  the  lands  of  the  tes- 
tator which  he  did  not  direct  to  be  sold,  is  not  created  by  ex- 
press words.  It  arises  from  an  implication  deduced  from  the 
fact  that  her  interest  therein,  is  given  in  general  terms  with- 
out defining  or  limiting  any  specific  estate.  It  will  also  be 
observed,  that  the  constructio^i  contended  for,  will  leave  the 
testator  intestate  as  to  the  one-third  part  thereof  in  question, 
after  the  termination  of  the  widow's  life  estate. 

The  Supreme  Court,  in  the  judgment  under  review,  sus- 
tained the  claim  of  an  estate  in  fee  in  Lucy  Akins  in  the  one- 
third  part  of  the  premises,  on  the  rule  of  construction,  that  a 
devise  of  an  estate  generally  with  a  power  to  dispose  of  the 
same  without  qualification  or  limitation,  imports  such  domin- 
ion over  the  property  as  that  an  estate  in  fee  is  created.  The 
distinction  is  between  a  devise  expressly  for  life  with  a  power 
of  disposition  annexed,  and  a  devise  in  general  terms  with 
such  a  power  annexed.  In  the  former  case,  an  estate  for  life 
only  passes,  in  the  latter  a  fee.  As  a  rule  of  construction,  the 
principle  is  entirely  settled,  that  where  lands  are  devised  in  the 
first  instance  in  language  indeterminate  as  to  the  quantity  of 
the  estate  from  which  an  estate  for  life  would  result  by  impli- 
cation, and  words  adapted  to  the  creation  of  a  power  of  dis- 
posal without  restriction  as  to  the  mode  of  execution  are  added, 
the  construction  will  be,  that  an  estate  in  fee  is  given;  but 
where  the  quantity  of  the  estate  of  the  taker  is  expressly  de- 
fined to  be  for  life,  the  superadded  words  will  be  construed  ta 
be  the  mere  gift  of  a  power  of  disposition.  The  leading 
English  authorities  sustaining  this  distinction,  are  cited  by 
the  Chief  Justice  in  his  opinion  in  the  court  below. 

The  general  rule  is,  that  when  a  will  devises  to  a  man  with 
a  i)0wer  to  give  a  fee,  he  is  construed  to  have  a  fee,  subject  to 
the  qualification  that  he  has  not  an  express  estate  divided 
from  the  power.  2  Preston  on  Estates  82.  "  We  may  lay 
it  down  as  an  incontrovertible  rule,"  says  Chancellor  Kent  in 
Jachson  v,  Robbins,  16  Johns.  537,  538,  "  that  where  an  estate 
is  given  to  a  person  generally  or  indefinitely  with  a  power 
of  disposition,  it  carries  a  fee,  and  the  only  exception  to  the 


NOVEMBER  TERM,  1872.  467 


Downey  v.  Borden. 


rule  is,  where  the  testator  gives  an  estate  for  life  only  by  cer- 
tain and  express  words,  and  annexes  to  it  a  power  of  disposal,, 
in  that  particular  and  special  case,  the  devisee  for  life  will  not 
take  an  estate  in  fee."  The  cases  are  collected  and  commented 
on  in  1  Sugden  07i  Powers  120,  et  seg.  ;  8  Vin.  Ahr.  234,  tit^ 
Devises  W  a  ;  Q  Bac.  Abr.,  tit.  Legacies  and  Devises  (C);  2 
Preston  on  Estates  HI ;  1  Roper  on  Legacies  642,  et  seq. ;  4 
Kent  319,  535;  2  Washburn  on  Real  Prop.  373. 

This  rule  of  construction  has  been  repeatedly  approved  by 
the  courts  of  this  state.  It  was  made  the  ground  of  decisioa 
by  Chancellor  Vroom  in  The  Dutch  Church  v.  Smock,  Saxton 
148,  and  by  Chancellor  Green  in  Annin  v.  Van  Doren^s- 
Adm'rs,  1  McCarter  135;  and  was  recognized  by  Chief  Jus- 
tice Hornblower  in  Den  v.  Humphreys,  1  Harr.  28  ;  by- 
Justices  Nevius  and  Carpenter  in  Armstrong  v.  Kent,  1  Zah, 
519,  522;  and  by  Chief  Justice  Green  in  Den  v.  Young,  3- 
Zab.  481,  as  an  established  rule  of  -construction.  In  the- 
©utch  Church  v.  Smock,  the  bequest  was  to  the  wife,  of  "  the 
sum  of  six  hundred  dollars,  to  be  at  her  disposal  during  life;'^ 
and  it  was  held  that  she  took  an  absolute  interest  in  the 
legacy,  and  not  merely  a  life  estate  with  a  power  of  disposi- 
tion during  life.  In  Annin  v.  Van  Doren's  Adm'rs,  a  testa- 
tor gave  to  his  daughters  the  residue  of  the  proceeds  of  his 
real  estate,  including  all  his  rights  and  credits  after  payment 
of  his  debts,  and  directed  that  his  executors  should  take 
charge  of  a  certain  farm  belonging  to  his  estate  and  lease  it 
during  the  life  of  his  son,  and  on  his  death,  should  sell  the 
same,  and  the  proceeds  of  such  sale  he  directed  to  be  divided 
among  his  daughters  and  the  children  of  his  sou,  equally,  ta 
them  and  their  heirs.  By  a  subsequent  clause,  he  provided 
that  in  case  either  of  his  daughters  died  leaving  no  lawful 
issue,  the  share  of  such  daughter,  i^  not  paid  over  by  his 
executors,  and  if  paid  over,  such  part  thereof  as  remained 
unexpended,  should  go  to  his  surviving  children  and  their 
heirs,  equally.  One  of  the  daughters  having  received  her 
share  of  the  funds  from  the  father's  executors,  died  without 
issue,  leaving  a  part  of  her  share  unexpended,  in  the  hand 


468       COURT  OF  ERRORS  AND  APPEALS. 

Downey  v.  Borden. 

of  her  agent.  On  a  bill  filed  to  determine  the  true  construc- 
tion of  the  bequest  to  the  daughters,  it  was  held  that  the 
unlimited  power  of  expenditure  given  to  the  daughters  during 
life,  was  tantamount  to  a  gift  of  so  much  as  remained  undis- 
posed of,  and  implied  absolute  ownership;  and  that,  there- 
fore, the  gift  was  absolute  in  the  first  taker,  and  the  limita- 
tion over  was  void. 

The  opinion  of  Mr.  Justice  Randolph,  in  this  court,  in 
Kent  V.  Armstrong,  2  Halst.  Ch.  E.  637,  has  iiot  been  over- 
looked. The  devise  there  was  to  E.  R.,  "  to  be  by  her  pos- 
sessed, enjoyed,  and  occupied,  to  her,  her  heirs  and  assigns^ 
forever,"  with  a  proviso  tliat  if  she  "should  die  without 
heirs,  and  intestate,  then  over."  The  learned  judge  throws 
out  an  intimation  that  superadded  words,  conferring  a  power 
of  disposition,  will  be  construed  to  give  a  mere  power,  not 
only  where  the  estate  for  life  is  given  by  express  words,  but 
also  where  t\ve  life  estate  arises  by  necessary  implication  or 
from  a  construction  of  the  will.  None  of  the  cases  cited 
support  that  position ;  on  the  contrary,  they,  with  entire 
unanimity,  recognize- and  sustain  the  distinction  between  the 
gift  of  an  estate  for  life  by  express  words,  and  a  gift  in  gen- 
eral terms,  omitting  the  words  of  inheritance,  by  which  an 
estate  for  life  is  created  by  implication  or  construction.  It 
did  not,  probably,  occur  to  the  learned  judge,  at  the  moment, 
tliat  his  modification  of  the  rule  of  construction,  the  existence 
of  which  he  admits,  would,  in  a  great  measure,  if  not  en- 
tirely, subvert  the  rule  as  applied  to  devises  of  lands.  Be 
that  as  it  may,  the  judgment  of  this  court,  in  the  case  referred 
to,  was  not  based  on  that  ground,  but  upon  the  other  ground 
that  the  word  "intestate"  did  not  import  an  unqualified 
power  of  disposition,  but  was  restrictive  in  the  sense  that  the 
disposition  contemplated  by  the  testator  could  only  be  made 
by  a  testamentary  disposition,  and  that,  therefore,  the  gift 
was  of  a  mere  power. 

It  was  contended  on  the  argument,  that  the  words,  "  that 
may  remain  at  the  time  of  her  death,  to  dispose  of  as  she 
may  see  proper,"  import  a   power   of  disposition  over  the 


NOVEMBER  TERM,  1872.  469 


Downey  v.  Borden. 


lands  by  will  only,  which  would  bring  this  case  within  the  de- 
cision of  the  court  in  Armstrong  v.  Kent.  I  do  not  so  con- 
strue this  language.  The  gift  to  the  widow,  in  the  third  clause 
of  the  will,  included  personal  property  which  would  be  worn 
out  or  expended  in  the  use,  as  well  as  real  estate.  The  words, 
"  that  may  remain  at  her  death,"  naturally  refer  to  such  per- 
sonal estate,  and,  as  we  liave  seen,  imply  such  a  power  of  dis- 
position over  it  as  to  give  the  absolute  property  in  personalty. 
The  Dutch  Church  v.  Smock,  Annin  v.  Van  Doren's  Adrn'rs, 
cited  above. 

In  this  connection,  the  counsel  referred  to  that  part  of  the 
will  which  forbids  the  removal  of  hay  or  straw  from  the  farm, 
and  expresses  the  wish  that  the  timber  should  be  preserved  for 
the  benefit  of  the  estate,  as  indicating  the  testator's  intention 
that  the  farm  should  be  kept  entire  during  the  widow's  life. 
Hence,  it  was  argued  that  her  power  of  disposition  over  the 
one-third  was  limited  to  a  disposition  by  will.  Conceding  that 
these  special  provisions  manifest  an  intent  on  the  part  of  the 
testator,  that  the  widow  should  occupy  and  improve  the  entire 
farm  during  her  lifetime,  they  cannot  be  permitted  to  qualify 
or  abridge  the  generality  of  the  language  in  which  the  right 
of  disposition  is  expressed,  especially  when  that  construction 
will  leave  the  testator  intestate  as  to  this  part  of  his  property 
after  the  death  of  the  widow,  whereas  it  is  apparent,  from  the 
wholb  will,  that  a  complete  testamentary  disposition  of  all  his 
property  was  intended. 

If  any  doubt  were  entertained  of  the  correctness  of  the  con- 
struction adopted  by  the  Supreme  Court,  it  would  be  removed 
by  the  statute,  which,  in  substance,  prescribes,  as  a  rule  of 
construction,  that  every  devise  of  lands,  in  general  terms,  when 
no  further  devise  thereof  is  made  after  the  death  of  the  devisee, 
shall  be  taken  to  be  a  devise  in  fee  simple,  unless  the  will  con- 
tains some  expression,  from  which  it  shall  appear  that  such 
devise  was  intended  to  give  only  an  estate  for  life.  Nix.  Dig. 
1035,  §  39.*  There  is  no  devise  over  of  the  ultimate  fee  in 
the  one-third,  after  the  termination  of  the  life  estate  of  the 


*  Bev.,  p.  lOSd,  2  13. 


470        COURT  OF  ERRO^  AND  APPEALS. 


Downey  v.  Borden. 

widow  in  the  entire  estate,  although  the  other  two-thirds  are 
ex[)ressly  limited  over  to  other  persons  after  her  death.  Under 
ti)ese  circumstances,  a  devise  in  fee  of  the  one-third  would  be 
created,  by  the  preceding  words  of  gift,  by  force  of  the  statute 
referred  to.  Den  v.  Snitcher,  2  Green  54.  This  effect  must 
must  be  given  to  the  preceding  words  of  devise,  unless  the 
generality  of  the  gift  is  qualified  by  other  expressions  in  the 
will,  from  which  it  shall  app«ar,  afiSrmatively,  that  the  inten- 
tion was  to  give  an  estate  for  life  only.  No  such  intention 
can  be  gathered  from  the  face  of  this  will.  On  the  contrary, 
the  language  used  by  the  testator  in  making  this  devise,  is  such 
as,  by  established  rules,  is  taken  to  create  a  fee. 

The  judgment  of  the  Supreme  Court  should  be  affirmed. 

Judgment  of  the  Supreme  Court  unanimously  affirmed. 


CASES  AT  LAW 


DETERMINED   IN  THE 


COURT  OF  ERRORS  AND  APPEALS 


STATE   OF  NEW  JERSEIV, 

AT  MARCH  TERM,  1873. 


STATE,  MOREIS  CANAL  AND  BANKING  COMPANY,  PROSE- 
CUTORS,  PLAINTIFFS  IN  ERROR,  v.  JOHN  B.  HAIGHT, 
COLLECTOR  OF  JERSEY  CITY, 

1.  It  does  not  follow  that  if  the  state  should  lease  a  portion  of  the  public 
domain,  the  lands  so  leased  would  be  exempt  from  taxation. 

2.  Whether  lands  of  the  state  conveyed  by  statute  for  a  term  of  years,  or 
for  any  other  term,  are  taxable  or  not,  depends  not  on  the  qualities  of 
the  estate  so  granted,  but  on  the  legislative  intention  expressed  in  such 
act. 

3.  The  conveyance  made  by  the  state  in  this  case  construed. 


In  error  to  the  Supreme  Court. 

For  former  proceedings  in  this  case,  see  6  Vroom  178. 

The  State  of  New  Jersey,  by  statute,  approved  March  14th, 
1867,  granted  to  the  Morris  Canal  and  Banking  Company, 
all  the  right,  title  and  interest  of  the  state  in  and  to  certain 
lands  under  water,  defined  by  boundaries. 

471 


472       COURT  OF  ERRORS  AND  APPEALS. 

State,  Morris  Canal  and  Banking  Co.,  Pros.,  v.  Haight,  Collector. 

The  second  proviso  iu  the  first  section  is  as  follows :  And 
provided  further,  that  the  said  company  shall,  within  ninety 
<lays  after  the  passage  of  this  act,  execute  and  deliver  to  the 
.  governor  of  this  state,  their  promise  and  undertaking,  under 
seal,  unconditionally,  to  pay  to  the  treasurer  of  this  state, 
yearly,  the  sum  of  $25,000  per  year,  on  or  before  the  first 
Tuesday  of  January  in  each  year,  during  the  continuance  of 
their  charter,  and  so  long  as  the  said  company,  their  succes- 
sors or  assigns,  shall  continue  to  hold  or  occupy  the  same; 
the  first  payment  of  a  ratable  portion  of  which  shall  fall  due 
on  the  first  Tuesday  of  January,  1868,  it  shall  be  lawful  for 
the  said  company,  instead  of  the  said  annual  payment  of  $25,- 
000,  to  pay  into  the  treasury  of  this  state,  at  any  time,  the 
«um  of  $357,142. 

It  was  further  enacted,  that  the  said  company  might,  under 
the  provisions  of  their  charter,  construct  piers,  wharves,  docks, 
basins,  warehouses,  and  other  structures  within  the  limits 
above  described,  and  make  reasonable  rules  and  regulations 
for  the  use  thereof,  to  enable  them  to  carry  on  a  transportation 
business  iu  and  over  their  canal  and  elsewhere,  which  they 
wei"e  thereby  empowered  to  do.  And  also  to  afford  facilities 
for  commerce,  ^^ provided  that  the  exemption  of  said  company, 
in  its  original  charter  from  taxation,  assessments,  or  other  legal 
impositions,  shall  not  extend  to  the  property  or  privileges  hereby 
granted." 

The  act  was  to  be  enforced  during  the  continuance  of  their 
charter,  and  at  the  expiration  of  tliat  time,  the  lands  thereby 
granted,  with  the  improvements  thereon,  should  revert  to  the 
state  on  the  same  terms  and  conditions  provided  in  the  origi- 
nal charter  of  the  company  respecting  the  transfer  of  the 
property  thereof  to  the  state. 

These  terms  are,  tkat  the  state,  at  the  end  of  ninety-nine 
years  from  tlie  passage  of  the  act,  (December  31st,  1824,) 
may  take  the  canal  and  appurtenances  at  a  valuation  by  com- 
missioners ;  and  if  this  be  not  done  within  one  year  there- 
after, the  charter  shall  continue  for  fifty  years  longer,  when 


MARCH  TERM,  1873.  473- 

State,  Morris  Canal  and  Banking  Co.,  Pros.,  v.  Haight,  Collector. 

it  shall  cease,  and  the  canal  and  appurtenances  become  tiie  sole 
property  of  the  state. 

June  10th,  1867,  the  company  executed  and  delivered  to 
the  governor  of  this  state  their  promise  and  undertaking,. 
under  seal,  according  to  the  second  proviso  of  the  first  sec- 
tion, and  have  been  since  that  time  in  the  possession  and  use 
of  said  premises,  paying  the  stipulated  annual  price  for  such 
possession  and  enjoyment. 

As  a  general  description  of  the  sitHation  of  the  property 
named  in  the  grant  from  the  state,  it  may  be  sufficient  to  say^ 
that  the  outlet  lock  of  the  canal  company  is  at  Washington 
street.  East  of  this,  and  extending  to  Hudson  street,  is  what 
is  called  the  north  canal  basin,  opening  southerly  between 
two  piers,  through  an  outlet,  into  what  is  known  as  the  south 
or  shipping  basin,  which  extends  southerly  to  the  northerly 
line  of  the  Central  Railroad  Company's  dock.  There  are  two 
unfinished  piers  projecting  northerly  from  the  Central  Rail- 
road Company's  line,  into  this  shipping  basin.  There  are  also 
two  larger  piers  opposite  to  them,  on  the  southerly  side  of  the 
north  basin.  "  And  between  these  opposite  piers  are  the  gaps 
referred  to  that  are  to  be  left  open  for  navigation. 

The  tide  ebbs  and  flows  over  all  the  premises  granted  by 
the  slate  to  the  prosecutors  under  the  act  of  1867,  and  it  ia 
not  uncovered  by  the  water  at  low  tide. 

For  the  plaintiffs  in  error,  I.  W.  Scudder  and  Thomas  N. 
McCarter. 

For  the  defendants,  J.  Dixon, 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  The  Supreme  Court  approved 
of  the  assessment  in  this  case,  and  now  the  principal  objection 
raised  up  against  this  result  is,  that  the  land  which  has  been 
taxed  is  the  property  of  the  state,  and,  therefore,  is  pot  liable 
to  the  burthen  in  question. 


474      COURT   OF  ERRORS  AND  APPEALS. 

State,  Morris  Canal  and  Banking  Co.,  Pros.,  v.  Haight,  Collector. 

This  argument  proceeds  upon  the  assumption  that  the  estate 
of  the  Morris  Caual  and  Banking  Company,  the  plaintiffs  in 
error,  is  a  leasehold,  and  that  it  is  a  legal  principle  that  a  tax, 
as  between  landlord  and  tenant,  in  the  absence  of  special 
agreement,  falls  upon  the  former.  Hence,  it  is  argued  that  as 
it  is  the  general  policy  of  our  laws  to  charge  the  taxes  ulti- 
mately on  the  land  owner,  and  as  the  lands  of  the  state  cannot 
be  taxed,  the  property  in  question  is  exempt. 

If  the  premises  thus  claimed  should  be  granted,  and  this 
case  is  regarded  upon  the  assumption  that  the  estate  held  by 
the  plaintiffs  in  error,  is  a  leasehold  for  a  term  of  years,  it 
may  well  be  doubted  whether  the  inference  drawn  from  such 
a  state  of  facts,  is  well  founded.  I  am  far  from  being  pre- 
pared to  hold  that,  because,  as  between  lessor  and  lessee,  in. 
an  ordinary  case,  it  is  the  rule  that  the  landlord  is  to  pay  the 
taxes  imposed  on  the  property  during  the  term ;  the  same  re- 
sult obtains  where  the  land  is  derived  from  the  state.  The 
rule  putting  this  obligation  on  lessor,  grew,  originally,  out  of 
the  supposed  intention  of  the  parties,  and  the  legal  principle 
is  nothing  more  than  the  creature  of  the  construction  of  leases. 

But  it  appears  to  me  that  a  question  very  different  from 
this  is  presented,  when  a  court  is  asked  to  draw  the  inference 
that,  when  the  land  of  the  state  is  put  for  a  term  of  years  in 
the  hands  of  a  citizen,  it  is  the  implied  intention  that,  with 
respect  to  such  j)roperty,  the  state  agrees  to  give  up  its  right 
to  tax.  In  such  transactions  it  is  not  practicable  to  place  the 
representative  of  the  public  on  the  same  level  with  private 
persons.  If  an  individual  leases  property  in  an  absolute 
form  for  a  defined  period,  he  parts  with  his  entire  right  in 
the  demised  premises  during  such  term.  But,  clearly,  this  is 
not  the  effect  of  a  lease  made  by  the  government,  for  it  can- 
not be  pretended  that  the  creation  of  such  an  estate  would 
prevent  the  public  from  taking  the  lands  thus  demised  for  its 
own  use  by  the  right  of  eminent  domain.  It  is  constantly  to 
be  borne  in  mind  that  the  state,  when  a  lessor  or  grantor,  by 
legislative  act,  is  still  a  government ;  and,  on  this  account,  if 
this  case  was  divested  of  the  characteristic  presently  to  be 


MARCH  TERM,  1873.  475 


State,  Morris  Canal  and  Banking  Co.,  Pros.,  v.  Haight,  Collector. 


noted,  I  should  not  be  inclined  to  hold  that  the  deduction 
could  be  drawn,  that  the  state,  by  force  of  its  position  as  les- 
sor, had  agreed  to  relinquish  one  of  its  necessary  powers  of 
sovereignty,  that  is,  its  right  to  tax.     But  in  my  apprehen- 
sion   these  questions  as   to   the   incidents   and    effect   which 
usually  belong  to  such  an  estate  as  has  been  vested  in  these 
plaiiitiffs,   whatever   such    estate    may   be,   has    no    practical 
bearing  on  the  point  to  be  decided.     The  fallacy  of  the  argu- 
ment erected  on  such  a  basis,  arises  from  losing  sight  of  the 
fact  that  the  interest  which  the  plaintiffs  in  error  have  in 
these  premises,  is  created  not  by  a  common  law  instrument, 
inter  partes,  but  by  an  act  of  the  legislature.     To  my  mind, 
the  introduction  of  this  element  of  tlie  affair  clears  it  of  all 
difficulty.     It  reduces  the  transaction,  at  once,  to  a  question, 
purely  of  legislative  intention  ;  an  intention  which  must  pre- 
vail, no  matter  how  violative  it  may  be  of  the  ordinary  rules 
which    attach    incidents   and   qualities    to   estates    in    realtv. 
Titles  to  lands  cannot  be  modified  indefinitely  at  the  will  of 
private  parties ;  no  agreement  of  theirs  can  impart  to  an  estate 
for  years,  the  peculiar  properties  of  an  estate  in  fee,  but  statu- 
tory authority  is  under  no  such  restriction.     No  one  will  ques- 
tion the  power  of  the  legislature  to  grant  any  part  of  the 
public  domain  in  fee,  the  grant  to  take  effect  in  the  future, 
without  the  intervention  of  a  freehold  to  support  it,  or  that 
the  same  estate  could  be,  in  the  same  way,  declared  to  be  ex- 
empted from  liability  to  the  incidents  of  curtesy  or  dower. 
The  entire  subject  is  in  the  legislative  hand,  and   the  only 
pertinent  inquiry  is,  as  to  the  particular  interest,  which  in  this 
instance,  has  been  placed  in  this  corporation,  no  matter  how 
anomalous  such  an  interest  may  be. 

On  this  hypothesis,  the  circumstances  before  us  will  bear 
but  a  single  construction.  By  the  original  charter  of  the 
Morris  Canal  Company  it  is  provided,  "  that  no  state,  county, 
township,  or  other  public  assessments,  taxes,  or  charges  what- 
soever, shall  at  any  time  be  laid  or  imposed  upon  the  said 
canal  company,  or  upon  the  stocks  and  estates  which  may  be- 
come vested  in  them  under  this  act,"  &c.     Pamph.  Laws, 


476       COURT  OF  ERRORS  AND  APPEALS. 

State,  Morris  Canal  and  Banking  Co.,  Pros.,  v.  Haight,  Collector. 

1824.  The  law  of  1867,  which  conveys  to  the  plaintiff  in 
error  the  premises  in  qnestiou,  contains  a  declaration,  by  way 
of  proviso,  in  these  words,  viz. :  "  That  the  exemption  of  said 
company,  in  its  original  charter,  from  taxation,  assessments, 
or  other  legal  impositions,  shall  not  extend  to  the  property 
or  privileges  hereby  granted."  That  is  to  say,  that  the  land 
embraced  in  this  grant,  of  this  act  of  1867,  shall  be  subject 
to  taxation,  although  the  other  property  of  the  corporation  is 
exempted.  The  intent  of  this  legislation  is  perfectly  clear ; 
it  is  to  render  these  premises  taxable  as  other  property  is,  by 
the  state,  and  in  my  opinion,  this  corporation  must,  there- 
fore, be  held  to  be  possessed  of  precisely  such  an  estate  as 
will  effectuate  such  clear  intent.  The  will  of  the  legislature 
is  above  and  will  override  all  technical  rules  which  might, 
under  other  circumstances,  be  applicable.  The  statutory 
declaration  that  these  lands  shall  be  liable  to  be  taxed,  in- 
volves, as  a  necessary  consequence,  that  such  tax  shall  be 
assessed  against  the  plaintiffs  in  error.  That  the  land  shall 
be  subject  to  taxation,  but  that  the  state  is  to  be  charged  as 
lessor  with  such  taxes,  is  an  absurdity.  There  would  be  no 
incongruity  with  legal  principles  in  a  statutory  enactment 
that  a  lessee  should  stand,  during  the  term,  for  certain  pur- 
poses, as  the  absolute  owner  of  the  land,  and  what  can  be- 
done  by  express  provision  may  be  effected  as  well  by  neces- 
sary implication.  If  there  was  no  perspicuous  indication  la 
this  law  of  an  intention  to  make  these  lands  taxable,  it  would 
have  been  quite  pertinent  to  inquire  with  respect  to  the  usual 
incidents  of  an  estate  raised  by  a  lease  or  other  conveyance, 
but  implications  arising  from  such  a  source  are  entirely  insig- 
nificant  in  opposition  to  the  plain  purpose  expressed  in  this 
act.  The  estate  miust  be  held  to  correspond  to  such  purpose. 
If  the  question,  therefore,  is  asked,  what  estate  has  this  canal 
company  in  these  premises?  the  answer,  all  sufficient  for  the 
matter  in  hand,  is,  such  an  estate  as  is  taxable.  This  view 
brushes  out  of  the  case  all  technicalities,  and  harmonizes  the 
result  with  the  intention,  not  only  of  the  state,  but  also  of  the- 
canal  company. 


MARCH  TERM,  1873.  477 


Siate,  Morris  Canal  and  Banking  Co.,  Pros.,  v.  Haight,  Collector. 

Nor  have  the  plaintiffs  in  error  satisfied  me  that  the  piers 
and  bulkheads,  which  are  within  the  bounds  of  the  premises 
in  question,  should  be  taken  out  of  iAils  tax. 

The  allegation  is,  that  these  works  had  been  constructed 
by  the  company  before  the  conveyance  of  the  property  to 
them  by  the  state.  Granting  that  this  is  so,  it  does  not  fol- 
low that  such  works  had  been  rightfully  erected.  It  clearly 
appears  that  they  stand  on  the  property  of  the  state;  how  is 
it  shown  that  this  corporation  was  warranted  in  placing  them 
on  such  property  ?  They  could  do  so  only  by  the  consent  of 
the  state,  and  they  have  not  shown  such  consent.  Their 
deeds  carry  the  title  to  the  lands  along  the  shore,  but  they 
cannot  claim  that  the  acts  in  question  were  done  by  them  as 
riparian  owners.  In  front  of  their  land  they  had  erected  a 
canal  and  canal  basin,  and  beyond  the  exterior  bank  of  such 
canal  and  basin,  these  piers  and  bulkheads  had  been  con- 
structed. Prior  to  recent  legislation  as  riparian  owners,  the 
company  were  authorized  to  extend,  by  filling  in,  the  shore 
line  into  the  water,  and  thus  acquire  title  to  the  land  so  re- 
claimed. But  by  virtue  of  such  right,  they  were  not  empow- 
ered to  make  such  encroachment  on  the  outside  of  their  canal 
basin.  So,  also,  as  shore  owners,  they  were  privileged  to 
build  wharves  and  docks,  but  it  is  not  possible  to  hold  that 
these  works  fall  within  the  definition  of  either  of  such  struc- 
tures. 

I  think  the  judgment  should  be  affirmed^ 

For  affirmance — The  Chancellor,  Chief  Justice, 
Bedle,  Dalbimple,  Depue,  Dodd,  Green,  Lathbop^^ 
Wales.    9. 


For  reversal — None. 

Vol.  vn.  30 


478       COURT  OF  ERRORS  AND  APPEALS 


State,  Protestant  Foster  Home  Society,  Pros.,  v.  Mayor,  &c.,  of  Newark. 


THE  STATE,  THE  PROTESTANT  FOSTER  HOME  SOCIETY  OF 
THE  CITY  OF  NEWARK,  PROSECUTORS,  v.  THE  MAYOR 
AND  COMMON  COUNCIL  OF  THE  CITY  OF  NEWARK. 


STlie  act  incorporating  the  prosecutors  declares  that  their  property  shall 
not  be  subject  to  taxes  or  assessments :  Held — that  the  words  taxes  or 
assessments  are  not  synonymous,  and  that  they  exempt  the  property 
from  assessments  for  benefits  as  well  as  from  taxes  for  general  revenue 
for  public  use. 


On  error  to  the  Supreme  Court. 

For  report  of  ease,  see  6  Vroom  157. 

For  the  plaintiffs  in  error,  H.  Young  and  C.  Parker. 

For  the  defendants,  Wm.  H.  Francis. 

The  opinion  of  the  court  was  delivered  by 

DoDD,  J.  The  Protestant  Foster  Home  Society  of  the 
city  of  Newark  was  incorporated  by  an  act  approved  Febru- 
ary 28th,  1849,  having  for  its  object  to  provide  for  the  sup- 
port of  destitute  children  of  that  city,  who  might  be  suffering 
from  the  inability,  neglect,  or  death  of  their  parents.  It 
was  empowered  to  hold  real  estate,  and  by  the  contributions 
of  benevolent  persons,  became  the  owner  of  a  number  of 
acres  in  the  outskirts  of  the  city.  In  1869,  two  assessments 
for  benefits  were  made  against  these  lands,  one  for  opening 
Sumner  avenue,  and  the  other  for  curbing  and  flagging 
Second  avenue,  both  amounting  to  $10,886.82.  Payment 
was  refused,  and  the  assessments  were  brought  by  certioraris 
to  the  Supreme  Court,  where  their  legality  was  disputed  on 
the  ground  fhat  the  society's  charter  enacts  that  its  property 
"  shall  not  be  subject  to  taxes  or  assessments."  The  judg- 
ment of  that  tribunal  affirming  the  liability,  is  brought  here 
by  writ  or  error,  and  the  single  question  is,  are  the  assess- 


MARCH  TERM,  1873.  479 


State,  Protestant  Foster  Home  Society,  Pros.,  v.  Mayor,  &c.,  of  Newark. 

ments  complained  of   within    the   exempting  words  ol'  the 
charter  ? 

I  think  that  they  are,  and  while  recognizing  to  its  fullest 
extent  the  indisputable  doctrine  relied  on  by  the  learned  jus- 
tice in  his  opinion  below,  that  no  person  or  corporation  can  be 
exempted  from  taxation,  except  by  express  words  or  necessary 
implication  equally  strong,  I  am  constrained  to  admit,  that 
the  legislative  intent  is  in  this  instance  too  clearly  and  dis 
tinctly  expressed  to  be  open  to  doubt.  In  interpreting  stat- 
utes, words  must  be  taken  in  their  plain  and  natural  sense ; 
the  sense  given  to  them  by  approved  and  general  usage.  The 
•exempting  words  here  are,  '*  taxes  or  assessments."  In  popu- 
lar acceptation,  in  legislative  enactments  and  in  judicial  deci- 
sions, these  words  have  a  different  meaning,  apply  to  different 
matters  and  cannot  be  treated  as  synonymous  terms.  This 
being  so,  no  supposed  impolicy  of  the  exemption  itself  can  be 
available  to  govern  the  judicial  construction  of  the  words. 

In  the  charter  of  Newark,  under  which  the  assessments 
were  made,  the  word  "taxes"  refers  exclusively  to  impositions 
for  general  revenue  for  the  publ-ic  uses  of  the  city,  county  or 
state.  They  are  levied  on  principles  not.  applicable  to  exac- 
tions for  special  benefits  derived  from  local  improvements, 
which  exactions  the  charter  denominates  assessments.  This 
is  ti'ue  of  the  original  charter  of  1836  and  of  the  revision  in 
1857. 

The  distinction  in  the  legal  meaning  of  the  words  is  recog- 
nized and  acted  on  in  the  decided  cases  in  this  state  where  the 
attempt  has  been  made  to  obtain  exemption  from  these  special 
assessments,  on  the  ground  that  they  were  included  within  the 
word  "  taxes."  These  cases  have  been  cited  to  sustain  the  judg- 
ment below,  but  they  go  wholly  and  decisively,  I  think,  to  a 
contrary  result.  They  establish  clearly  that  assessments  are 
not  taxes,  in  the  ordinary  legislative  sense  of  the  words.  They 
so  expressly  declare.  In  the  case  of  the  City  of  Paterson  v. 
The  Society  for  Establishing  Useful  Manufactures,  4  Zab.  385, 
the  expenses  of  grading  and  paving  a  street  had  been  assessed 


480       COURT  OF  ERRORS  AND  APPEALS. 

State,  Protestant  Foster  Home  Society,  Pros.,  v.  Mayor,  &c.,  of  Newark* 

upon  lots  owned  by  the  defendants,  and  such  assessments  were 
held  by  the  Supreme  Court  not  to  be  a  tax  within  the  mean- 
ing of"  the  defendants'  charter,  which  exempted  ilieir  property 
from  "  all  taxes,  charges  and  impositions  under  the  authority 
of  the  state."  It  was  said  that  the  words  "  taxes,  charges  and 
impositions"  specified  iu  the  charter,  were  manifestly  those 
only  for  public  or  general  use.  The  same  view  was  taken  in 
The  State  v.  The  City  of  Newark,  3  Dutcher  185.  An  assess- 
ment for  benefits  was  discriminated  from  taxes  or  impositions. 
In  neither  case  was  the  word  "assessment"  employed  in  the 
exempting  clause  of  the  charter.  This  recognition  by  our 
own  courts,  of  the  essential  difference  between  the  words 
"  taxes  and  assessments,"  as  expressive  of  essentially  different 
things,  would  seem  to  be  conclusive  against  holding  them,  in 
this  case,  to  be  simply  identical  in  meaning.  Unless  so  held, 
the  assessment  in  this  case  is  plainly  illegal. 

The  distinction  between  them  is  fully  exhibited  in  the'case 
of  Emery  v.  San  Francisco  Gas  Co.,  28  Cal.  Reports  345, 
where  the  above  mentioned  decisions  of  this  state  are  citc(i 
among  others  to  illustrate  and  enforce  it.  The  language  (1 
the  court  was  as  follows:  '*  The  different  significations  of  the 
terms  taxes  and  assessments  will  be  found  upon  examination, 
to  be  well  established  in  the  legal  language  of  the  several 
states,  and  to  run  through  the  statutes,  and  to  have  been  rec- 
ognized and  enforced  by  the  various  judicial  tribunals  of  the 
country,  and  to  have  found  their  way  into  the  constitutions  of 
many  of  the  states."  Numerous  references  are  made  in  the 
opinion  from  which  this  language  is  taken  to  justify  the  cor- 
rectness of  the  statements  contained  in  it. 

As  before  remarked,  the  policy  or  impolicy  of  thus  exempt- 
ing property ^-even  that  of  purely  charitable  or  religious  cor- 
porations— from  payments  for  benefits,  increasing  its  value 
to  the  extent  of  the  assessment,  cannot  now  be  considered.  It 
is  admitted,  that  the  legislative  power  to  exempt  it  is  clear, 
and  it  must  be  held,  that  in  this  case  the  power  has  been 
clearly  exerted.     If  impolitic  or  wrong,  the  exemption  may 


MARCH  TERM,  1873.  481 


Peterson  and  Wife  v.  Mulford. 


be  annulled  by  the  power  that  created   it,  but  not  by  the 
■courts. 

The  judgment  below  should  be  reversed  and  the  assessment 
against  the  prosecutors  set  aside. 

For  reversal — The  Chancelloe,  Chief  Justice,  Scud- 
DER,  DoDD,  Greex,  Ogden,  Wales.     7. 

For  affirmance — Bedle.     1. 

Cited  in  Slate,  New  Jersey  R.  R.  &  T.  Co.,  pros.,  v.  Elizabeth,  8  Vr.  330 ; 
■State,  Midland  B.  R.  Co.,  pros.,  v.  Jersey  City,  13  Vr.  97 ;  Stephens'  Ej^r  v. 
Milnor,  9  C.  E.  Gr.  358. 


WILLIAM  PETERSON  AND  WIFE,   PLAINTIFFS   IN   ERROE, 
V.  ALFRED  MULFORD,  DEFENDANT  IN  ERROR. 

1.  A  husband  may  permit  a  wife  to  labor  for  herself,  and  appropriate  to 
her  own  use  the  avails  of  her  labor,  and  may  give  to  her  or  allow  her 
to  appropriate  to  her  own  use  the  proceeds  of  her  own  labor  when 
received  by  her. 

2.  Such  permission  or  gift  is  good  against  the  creditors  of  the  husband, 
if  such  proceeds  have  not  actually  been  reduced  into  his  possession. 


On  writ  of  error  to  the  Cumberland  Circuit. 

The  facts  of  the  case  appear  fully  in  the  opinion  of  the  court. 

For  the  plaintiffs  in  error,  Reeves  and  A.  Browning. 

For  the  defendant  in  error,  L.  Lupion  and  F.  F.  Westcott. 

The  defendant  in  error  contends  that  the  attempted  pur- 
chase of  the  husband's  mortgage  by  the  wife,  was  fraudulent 
both  in  fact  and  in  law. 

I.  It  was  fraudulent  in  fact. 

The  plaintiff's  judgment  was  recovered  in  October,  1869; 
he  proceeded  to  enforce  it ;  took  out  execution,  advertised  the 


482   COURT  OF  ERRORS  AND  APPEALS. 

Peterson  and  Wife  v.  Mulford. 

land,  purchased  it  at  sherifif's  sale,  and  took  a  sheriflP's  deed 
January  29tlj,  1870;  whilst  he  was  thus  engaged,  to  wit,  in 
the  same  month  of  January,  the  defendant,  Sarah  Peterson, 
who  was  cognizant  of  these  facts,  for  she  admits,  "  my  husband's 
creditors  were  trying  to  burst  him  up"  with  a  view  to  protect 
him  from  them,  (for  she  continues,  and  I  wanted  to  help  him,) 
caused  the  mortgage  to  be  assigned  to  herself,  and  dated  back 
as  of  the  7th  day  of  February,  1866,  being  a  date  anterior  to 
the  recovery  of  the  plaintiff's  judgment;  ancl  she  did  this 
with  the  privity  and  at  the  suggestion  of  her  iiushaiul  :  "  3Iy 
husband  told  me  1  would  have  to  take  my  money  (u  save  the 
house." 

Here  are  all  the  elements  of  act-ual  fraud ;  insolvency  of  the 
husband,  the  knowledge  of  such  insolvency  both  on  his  part 
and  hers,  and  an  attempt,  in  which  both  co-operated,  to  put 
his  property  beyond  the  reach  of  the  creditor ;  an  attempt,  in 
the  suggestive  language  of  the  witness,  "  to  save  the  house." 

II.  It  was  also  fraudulent  in  law. 

There  is  no  pretence  that  the  assignment  of  the  mortgage 
was  purchased  with  the  separate  property  of  the  wife,  nor 
even  that  she  had  any  separate  property,  using  that  term  in 
its  legal  acceptation.  The  consideration  of  the  assignment 
was  her  earnings  during  coverture;  these  are  not  a  wife's 
property,  but  her  husband's.  The  only  way  she  can  acquire 
title  to  them  is  by  a  distinct  gift  from  her  husband,  and  he 
cannot  make  such  gift  when  he  is  involved  in  debt;  as  against 
his  creditors,  he  cannot  give  or  agree  to  give  them  to  her ; 
real  estate  purchased  with  them  is  his,  and  liable  to  be  taken 
for  his  debts.  Belford  et  al.  v.  Crane,  1  C.  E.  Green  265  ; 
Cramer  v.  Reford,  2  26.  367  ;  National  Bank  of  Metropolis  v. 
Sprague,  5  lb.  13 ;  Skitlman  v.  Skillman,  2  Beasley  403 ;  1 
Pars,  on  Cont.  {ed.  of  1853,)  286,  and  cases  cited  in  note. 

"  Where  a  wife  has  no  separate  estate,  she  can  acquire  no 
property  with  her  earnings  during  coverture;  her  earuinga 
belong  to  her  husband,  and  if  she  purchases  with  borrowed 


MARCH  TERM,  1873.  483 

Peterson  and  Wife  v.  Mulford. 

money,  or  on  credit,  the  property  belongs  to  her  husband." 
Bucher  v.  Ream,  68  Perm.  421. 

The  eases  al>ove  cited  show  that  the  only  way  a  wife  can 
acquire  any  property  in  her  earnings  is  "63/  a  distinct  gift" 
from  her  husband. 

The  present  case  shows  that  no  such  gift  was  ever  made; 
the  testimo-ny  of  the  wife,  on  cross-examination,  being  that 
she  kept  the  fact  of  the  existence  of  her  earnings  a  secret  from 
her  husband.  It  is  obvious  he  could  not  give  away  that  of 
which  he  did  not  know. 

The  only  testimony  which  could  be  distorted  into  making 
any  of  their  transactions  wear  the  similitude  of  a  gift,  is 
where  the  wife  testifies,  "  my  husband  told  me  I  would  have 
to  take  my  naoney  to  save  the  house." 

But  this  was  not  a  gift  to  the  wife  of  her  earnings.  It 
was  a  request  that  she  should  take  them,  and  use  them  for 
his  benefit,  by  covering  up  property  from  his  creditors,  the 
legal  title  of  which  was  in  him.  If  this  transaction  could  be 
supported,  then  a  husband  who  has  lands  worth  $10,000,  on 
which  there  is  a  mortgage  of  $1000,  can  protect  them  from 
creditors  to  whom  he  is  indebted  many  times  their  value,  by 
requesting  his  wife  to  take  her  earnings  and  procure  an  as- 
signment of  the  mortgage  to  her. 

And  even  if  the  earnings  of  the  wife  had  become  her  prop- 
erty by  gift,  she  could  not  mix  them  with  property  of  her 
husband,  and  hold  it  as  against  his  creditors.  Quidort's 
Adm'rs  v.  Pergeaux,  3  C.  E.  Green  472. 

And  further,  as  seen  above,  he  could  not,  when  in  debt, 
give  her  earnings  to  her  if  he  would.  Cramer  v.  Reford,  2 
a  E.  Green  367. 

The  wife  could  not  keep  the  mortgage  alive,  and  defeat  her 
husband's  creditors,  by  taking  his  funds,  to  wit,  her  earnings, 
and  procuring  an  assignment  of  it  to  her.  Such  a  transaction 
would  simply  be  a  payment,  and  the  mortgage  would  become 
extinguished;  the  ruling  of  the  judge  to  this  effect  falls  en- 
tirely within  the  case  of  Shepherd's  Ex'x  v.  MeClain,  3  C.  E. 
Green  128. 


484       COURT  OF  ERRORS  AND  APPEALS. 

Peterson  and  Wife  v.  Mulford. 

The  only  case  cited  by  the  defendant's  counsel,  at  the  trial, 
seeming  to  conflict  with  those  stated  above,  is  Stall  v.  Fulton, 
1  Vroovi  430. 

Nothing  was  said  in  that  cause  necessary  to  its  decision, 
which  affects  the  one  now  under  discussion.  The  creditors 
of  the  husband,  in  that  case,  attempted  to  maintain  ejectment 
for  lands,  the  legal  title  of  which  was  in  the  wife,  and  never 
had  been  in  the  husband.  The  court  say  expressly,  that  this 
single  aspect  of  the  cause  was  sufficient  for  its  decision.  And 
although  the  court  looked  farther,  and  considered  the  question 
as  to  whether  the  husband  or  wife  owns  her  earnings,  what- 
ever was  said  upon  this  unnecessary  matter  was  dictum,  and 
not  decision. 

But  even  the  dicta  in  that  case  do  not  protect  the  defend- 
ants below.  The  court  there  say  "  the  earnings  of  the  wife 
belong  to  her,  and  not  to  her  husband,  until  he  does  some  act 
with  intent  to  reduce  them  into  possession." 

In  this  case,  the  husband  did  such  an  act  by  directing  the 
wife  "to  take  her  money  to  save  the  house" — his  house. 
This  was  an  act  of  appropriation  on  his  part. 

It  is,  however,  submitted,  that  as  what  is  said  in  Stall  v. 
Fulton  upon  the  subject  of  earnings,  conflicts  with  the  gen- 
eral line  of  New  Jersey  decisions  above  cited,  it  must,  eveu 
if  pertinent,  yield  to  the  weight  of  authority.  That  what  is 
there  said  is  not  considered  law,  may  be  assumed  from  the 
fact,  that  in  the  proposed  revision  of  the  married  woman's 
act,  under  the  care  of  two  of  the  justices  of  this  court,  the  fol- 
lowing clause  occurs : 

"  4.  And  be  it  enacted,  That  the  wages  and  earnings  of  any 
married  woman  acquired  by  her  after  the  passing  of  this  ad, 
and  all  investments  of  such  wages  and  earnings,  shall  be  her 
sole  and  separate  property,  as  though  she  were  a  single 
woman." 

No  such  provision  is  found  in  the  law  as  it  now  exists,  and 
the  fact  that  its  enactment  is  suggested,  shows,  that  in  tiie 
judgment  of  the   revisers,  such  enactment  is  necessary  in 


MARCH  TERM,  1873.  485 


Petersou  and  Wife  v.  Mulford. 


•order  to  bring  about  that  condition  of  the  law  which  it  pro- 
poses. 

The  opinion  of  the  court  was  delivered  by 

The  Chancellor.  The  bill  of  exceptions  in  this  case, 
returned  with  the  writ  of  error,  shows  that  on  the  trial  of  the 
ejectment  at  the  Cumberland  Circuit,  there  was  evidence  that 
Peterson,  the  husband,  was  seized  of  tlie  premises  in  dispute, 
and  with  his  wife  mortgaged  them  to  one  Batemao,  in  1857, 
to  secure  $273.  That  Peterson  being  engaged  in  oystering 
in  Chesapeake  bay,  Mrs.  Peterson  remained  at  home  on  the 
premises  and  took  care  of,  and  to  a  great  extent  supported 
the  family.  She  earned  money  by  her  own  labor,  in  picking 
■berries,  in  washing,  taking  two  children  to  board,  and  by  sell- 
ing milk,  butter,  eggs,  &c.  In  1866  Bateman  wrote  to  her 
requiring  payment  of  the  mortgage.  She  told  her  husband 
that  she  had  saved  $200  out  of  her  earnings,  which  she  kept 
in  a  secret  place,  and  of  which  he,  until  then,  had  no  knowl- 
edge ;  he  told  her  she  would  have  to  take  her  money  to  save 
the  house.  He  weut  with  her  to  Bateman's,  where  she  paid 
the  money  to  Bateman  and  took  an  assignment  of  the  mort- 
gage in  her  own  name,  giving  him  her  note  for  the  $73,  which 
she  afterwards  paid  out  of  her  own  earnings.  Peterson  owed 
Mulford  at  that  time,  a  debt  for  which  he  recovered  a  judg- 
ment of  $190,  under  which  the  premises  were  sold  by  the 
sheriff  to  Mulford.  He  owed  another  debt  to  Mulford  of 
about  the  same  amount. 

The  only  question  in  the  cause  was,  whether  the  mortgage 
was  a  valid  subsisting  claim  in  the  hands  of  Mrs.  Peterson? 

Tlie  judge  charged  the  jury  that  the  right  of  a  husband 
during  coverture  to  the  service  of  his  wife,  and  to  the  proceeds 
of  her  skill  and  industry  is  absolute,  and  that  if  the  jury  be- 
lieved that  the  assignment  was  purchased  with  the  proceeds 
of  the  wife's  labor  while  her  husband  was  involved  in  the  debt 
which  had  been  proved,  wi'th  intent  to  defraud  the  plaintiff 
thereof,  the  payment  of  Mrs.  Bateman  of  tlie  sum  which  was 
the  consideration  of  the  assignment  to  her,  operated  as  a  satis- 


486       COURT  OF  ERRORS  AND  APPEALS. 

Peterson  and  Wife  v.  Mulford. 

faction  of  the  mortgage,  and  no  title  to  the  mortgage  passed 
to  her  by  the  assignment.  Under  such  circumstances,  the 
transfer  and  assignment  would  be  void  as  against  the  hus- 
band's creditors.  And  even  if  the  husband  could,  as  against  his 
creditors,  have  made  a  gift  of  the  avails  of  her  services  to  his 
wife,  there  was  no  sufficient  evidence  that  he  made  such  gift. 
This  charge  was  excepted  to,  and  the  only  question  here  is, 
whether  it  was  correct. 

The  first  question  raised  is  as  to  the  absolute  right  of  the 
husband  to  the  proceeds  of  his  wife's  labor,  and  his  power  to 
allow  his  wife  to  retain  them,  or  to  give  them  to  her  as 
against  his  creditors. 

There  can  be  no  question  but  that  a  husband  is  entitled  to 
the  services  of  his  wife  if  he  claims  them,  and  also  to  the 
proceeds  of  her  labor,  unless  he  permits  her  to  labor  for  her 
own  account,  or  after  she  has  earned  or  received  the  proceeds, 
gives  them  to  her,  or  allows  her  to  appropriate  them  to  her 
own  use. 

This  is  clear  by  the  common  law,  and  is  recognized  in  all 
the  cases  in  this  state  where  the  question  is  considered.  But 
the  doubt  is  raised  upon  the  question  whether,  if  a  husband 
permits  his  wife  to  labor  for  her  owa  benefit,  or  permits  her 
to  keep  her  earnings  when  received  and  appropriate  them  ta 
her  own  use,  or  invest  them  in  her  own  name,  this  gives  her 
a  title  which  is  good  against  the  husband  or  his  creditors. 

At  common  law,  money  due  the  wife  for  her  services,  is  a 
chose  in  action,  which  the  husband  can  reduce  into  possession. 
If  due  for  service  rendered  without  express  agreement,  it  can 
only  be  recovered  by  the  husband,  and  the  wife  cannot  be 
joined  in  the  suit.  But  if  due  on  an  agreement  or  contract 
with  her,  it  is  a  chose  in  action  in  her,  and  which,  like  all 
other  choses  in  action,  whether  by  deed  or  parol  arising 
during  coverture,  can  be  reduced  into  possession  by  him,  but 
if  not  reduced  at  his  death  will  survive  to  her,  and  at  her 
death  go  to  him  as  her  administrator.  On  this,  as  on  a  note 
or  bond  given  to  her  for  money  received  by  her  by  bequest, 
he  could  sue  in  their  joint  names  or  in  his  own  name.     Clancy 


MARCH  TERM,  1873.  487 


Peterson  and  Wife  v.  Mulford. 


on  Rights  of  Married  Women  4,  5,  6 ;  Brashford  v.  Bucking- 
ham, Cro.  Jac.  11)  Pratt  d  ux.  v.  Taylor,  Cro.  Eliz.  61  ^ 
Philliskirk  v.  Pluchwell,  2  Maule  &  Selwyn  393 ;  2  Kent's  Cora. 
119  ;  Garforih  v.  Bradley,  8  Fes.  670  ;  Richards  v.  Richards, 
2  5.  &  Ad.  447;  ^?tcZ;%  v.  Collier,  1  ;Sa/^.  114  <fc  n.;  ^^a^^' 
V.  Fulton,  1  Vroom  440. 

In  this  case  the  earnings  by  sale  of  berries,  &c.,  by  washing 
and  by  boarding,  must  haye  been  all  due  on  express  contracts, 
and  were,  until  received,  choses  in  action,  vested  in  her,  which 
would  have  survived  to  her  on  his  death.  These  wages  of  the 
wife,  although  due  to  her  when  paid  and  delivered  to  her  in 
mone.y,  which  is  a  chattel  like  all  other  chattels,  became  the 
property  of  the  husband,  unless  he  gave  them  to  her,  or  suf- 
fered her  to  appropriate  them  to  her  separate  use  in  some  law- 
ful mode. 

Though  the  earnings  of  a  wife  are  not  within  the  pro- 
visions of  the  married  woman's  act,  yet,  in  a  series  of  deci- 
sions in  this  state  arising  out  of  the  spirit  of  that  act,  and 
in  accordance  with  its  provisions,  it  has  been  held  that  the 
earnings  of  a  married  woman,  working  on  her  own  account, 
by  her  husband's  permission,  or  earned  in  working  for  her- 
self without  his  permission,  if  given  to  her  by  him,  are  her 
separate  property,  and  within  the  provisions  of  that  act;  and 
that  a  husband  is  not  bound  to  compel  his  wife  to  labor  for 
his  creditors  or  to  appropriate  her  earnings  for  them,  and  that 
such  permission  and  gift  are  valid  as  against  his  creditors. 
In  the  case  of  Skillman  v.  Skillman,  2  Beas.  403,  in  Chancery, 
and  2  McCarter  479,  in  this  court,  there  was  no  question  as  to 
the  right  of  the  husband  to  give  to  his  wife  her  own  earnings. 
On  the  contrary,  it  seems  assumed,  in  the  opinion  of  this 
court,  that  he  could.  And  Chancellor  Green  says,  that 
though  such  gift  is  void  at  law,  it  will  be  protected  in  equity. 
In  both  courts  the  case  was  decided  on  the  ground  that  there 
was  no  evidence  that  the  hu'sband  gave  her  earnings  to  the 
wife,  or  assented  to  her  earning  money  and  appropriating  it 
to  her  separate  use.  In  both  courts,  the  fact  that  her  earnings 
were  expended  on    property  of  which    the  title  was  in    her 


488       COURT  OF  ERRORS  AND  APPEALS. 

Peterson  and  Wife  v.  Mulford. 

husband,  without  any  understanding  that  it  was  for  her  bene- 
i5t,  was  the  turning  point  of  the  case.  In  the  opinion  in  this 
court  a  regret  expressed  "  that  she  did  not  make  her  praise- 
worthy efforts  to  secure  a  home  for  her  family  and  herself  in 
a  way  to  accomplish  it,"  implies  that  if  she  had  taken  the  title 
in  her  own  name,  as  Mrs.  Peterson  did  in  this  case,  she  would 
have  been  protected. 

In  Johnson  v.  Vail,  1  McCarter  423,  one  object  of  the 
bill  was  to  restrain,  by  injunction,  the  sale  of  crops  raised  on 
the  land  of  the  wife,  by  her  labor  and  that  of  her  minor 
children,  from  sale  by  execution  against  the  husband.  Chan- 
cellor Green  says :  "  That  with  the  assent  of  the  husband  and 
father,  the  labor  of  the  wife  and  children  may  be  bestowed 
upon  the  separate  property  of  the  wife,  and  thus  accrue  to 
her  benefit.  I  know  of  no  rule  of  law  which  requires  a  hus- 
band and  father  to  compel  his  wife  and  children  to  work  in 
the  service  of  his  creditors ; "  and  again :  "  Under  the  facts 
€tated  in  the  bill,  the  assent  of  the  husband  to  the  cultivation 
of  the  land  by  the  wife,  he  being  in  the  house  and  being 
engaged  in  other  employments,  will  be  implied." 

The  Supreme  Court  in  the  case  of  Stall  v,  Fulton,  1  Vroom 
430,  hold  the  same  doctrine.  In  that  case,  the  land  was  pur- 
chased by  the  earnings  of  the  wife  and  his  minor  daughters, 
in  an  employment  known  to  him,  to  which  he  gave  implied 
assent  by  taking  their  work  to  their  employer,  but  in  which 
no  express  or  other  implied  assent  to  the  appropriation  of 
these  earnings  by  the  wife,  was  shown. 

Chancellor  Green,  in  Belford  v.  Crane,  2  C.  E.  Green  265, 
while  he  holds  that  the  husband  has  an  absolute  right  to  the 
services  and  earnings  of  the  wife,  founds  his  reasoning  on  the 
assumption  that  the  husband  can  give  her  own  earnings  to  the 
-wife,  and  decides  the  case  on  t-he  fact  that  there  was  no  aver- 
ment of  a  gift  to  her  of  the  avails  of  her  labor  and  the  fact 
that  the  money  was  the  proceeds  of  the  joint  labor  of  husband 
and  wife  mixed  together,  without  any  accounts  by  which  one 
•could  be  distinguished  from  the  other. 

In  Quidort's  Adm*r  v.  Pergeaux,  3  C.  E.  Green  472,  it  is 


MARCH  TERM,  1873.  48& 

Peterson  and  Wife  v.  Mulford. 

declared  that  "a  husband  at  law  is  entitled  to  the  earnings  of 
his  wife.  The  common  law  is  not  altered  in  this  respect  by 
the  married  woman's  act.  But  he  may  allow  his  wife  to  take 
her  own  earnings  and  a[)propriate  them  to  her  separate  use,^ 
and  such  appropriation  is  good,  even  as  agnnst  his  creditors. 
When  they  are  invested  in  her  name,  neither  he  nor  his  cred- 
itors can  disturb  them." 

The  opinion  of  Wilson,  Master,  in  Cramer  v.  Reford,  2  C 
E.  Green  380,  seems  to  be  in  conflict  with  these  last  three 
cases;  but  this  is  not  the  point  upon  which  that  case  was  de- 
cided, nor  is  it  supported  by  the  authorities  cited. 

It  may  therefore  be  held  as  the  settled  law  of  this  state, 
that  a  husband  may  permit  his  wife  to  labor  for  herself  and 
appropriate  to  her  own  use  the  avails  of  her  labor,  and  may 
give  to  her  or  allow  her  to  appropriate  to  her  own  use,  the 
proceeds  of  her  own  labor  when  received  by  her,  and  that  such 
permission  or  gift  is  good  and  valid  as  against  his  creditors, 
if  such  proceeds  have  not  actually  been  reduced  into  his  pos- 
session. A  husband  could,  at  common  law,  purchase  land 
and  have  the  deed  made  to  his  wife,  or  could  invest  his  money 
for  her  in  bonds,  mortgages  or  other  choses  in  action  taken 
in  her  name,  and  by  this,  the  property  became  hers  both  as 
against  him,  if  he  did  not  reduce  the  choses  in  action  into  pos- 
session, and  as  against  his  creditors ;  but  like  voluntary  gifts 
to  any  other  persons,  such  gifts  would  be  void  as  against  his 
creditors  if  made  with  intent  to  defraud  existing  or  future 
creditors,  or  if  operating  to  defraud  existing  creditors. 

In  this  case,  the  fact  that  the  husband  did  not  claim  or 
take  this  money,  but  told  the  wife  that  she  must  take  her 
money  to  save  the  house,  and  allowed  her,  though  he  went 
with  her  to  take  it  to  the  mortgagee  as  her  own  and  to  take  an 
assignment  of  the  mortgage  with  it  in  her  own  name,  is  proof 
from  which  the  jury  could  infer  that  he  intended  to  give  the 
amount  to  her  and  permit  her  to  retain  these  earnings  as  her 
separate  property. 

In  McClusky  v.  The  Provident  Institution  for  Savings,  IDS' 
Mass.  301,  it  was  held  that  a  deposit  in  a  savings  bank  in  the 


490       COURT  OF  ERRORS  AND  APPEALS. 

Mayor,  &c.,  of  Hoboken  v.  Bailey. 

wife's  name,  with  the  knowledge  and  consent  of  the  husband, 
would  be  sufficient  evidence  of  a  gift  by  the  husband  perfected 
by  delivery,  that  there  was,  at  all  events,  some  evidence,  and 
it  should  have  been  left  to  the  jury. 

The  charge  of  the  court  was,  therefore,  in  this  respect,  con- 
trary to  law. 

For  reversal — The  Chancellor,  Chief  Justice,  Bedle, 
Dalrimple,  Depue,  Scudder,  Clement,  Dodd,  Green, 
Lathrop.     10. 

For  affirmance — None. 

CriED  in  iMse  v.  Jones,  10  Vr.  101 ;  Fresch  v.  Wirtz,  7  Stew.  Eq.  124. 


THE  MAYOR  AND  COMMOX  COUNCIL  OF  HOBOKEN,  PLAIN- 
TIFFS  IN  ERROR,  v.  GEORGE  W.  BAILEY,  DEFENDANT 
IN  ERROR. 

1.  The  foundation  of  the  right  of  action  to  recover  a  bounty  offered  for 
volunteers,  is  the  contract  concluded  by  the  offer  on  the  one  side,  and 
its  acceptance  by  the  other,  supported  by  the  consideration  which 
results  from  tbe  performance  of  the  stipulated  service,  on  the  faith  of 
the  promise  contained  in  the  offer. 

2.  To  make  a  contract,  there  must  be  mutual  assent,  or  an  offer  by 
one  party  and  consent  by  the  other.  There  cannot  be  consent  to  an 
offer  so  as  to  make  a  contract,  when  the  party  has  no  knowledge  of 
the  offer. 

5.  Tlie  county  of  H.  offered  a  boimty  of  $400,  and  the  city  of  H.,  which 
was  within  the  county,  offered  an  additional  bounty  of  $350.  The 
plaintiff  volunteered,  and  was  credited  to  the  city.  On  his  enlistment, 
the  sum  of  1400  was  p;iid»to  him  by  H.,  the  agent  of  the  county, 
which  was  repaid  to  the  agent  by  the  county.  In  an  action  in  the 
name  of  the  volunteer  procured  by  H.  to  recover  the  bounty  of  the 
city — Held,  that  the  circumstances  indicating  that  the  plaintiff  volun- 
teered solely  for  the  county  bounty,  without  any  knowledge  that  a 
bounty  was  also  offered  by  the  city,  it  should  have  been  left  to  the  jury 
to  say  whether  the  volunteer  had  knowledge  of  the  city  bounty,  and 
volunteered  on  the  faith  of  receiving  it. 


MARCH  TERM,  1873.  491 


Mayor,  &c.,  of  Hoboken  v.  Bailey. 


On  error  to  the  Supreme  Court. 

This  action  was  brought  in  the  uanie  of  Bailey,  by  James 
T.  Hatfield,  who  claims,  as  the  equitable  assignee  of  Bailey, 
to  recover  a  bounty  of  $350  from  the  city,  for  the  enlistment, 
by  Bailey,  in  the  army  of  the  United  States. 

The  county  of  Hudson  had  offered  a  bounty  of  $400  for 
volunteers,  who  were  duly  credited  to  localities  within  the 
county.  Hatfield,  as  one  of  the  board  of  chosen  freeholders, 
was  acting  for  the  county  in  procuring  volunteers. 

The  claim  against  the  city  was  based  on  the  following  reso- 
lution, adopted  by  the  common  council  on  the  18th  of  March, 
and  approved  on  the  20th  of  March,  1865,  viz. : 

Resolved,  That  a  city  scrip  for  the  amount  of  $350,  in  addi- 
tion to  the  county  bounty  of  $400,  be  issued  to  every  drafted 
man  or  volunteer  from  this  city,  entering  the  service  under 
the  late  call  of  the  President  of  the  United  States  for  three 
hundred  thousand  men  ;  provided,  such  drafted  man  or  volun- 
teer shall  enter  the  military  service  of  the  United  States,  or 
furnish  an  acceptable  substitute  for  one  or  more  years,  and 
shall  be  duly  credited  to  the  quota  of  this  city  under  the 
present  call." 

Bailey  was  duly  enlisted,  and  credited  to  the  second  ward 
of  the  city  of  Hoboken,  and  a  certificate  of  enlistment  was 
given  to  him  as  follows: 

"  This  is  to  certify  that  George  W.  Bailey  was  entered  into 
the  military  service  of  the  United  States  from  the  second 
ward  of  the  city  of  Hoboken,  Hudson  county.  New  Jersey, 
as  a  volunteer,  one  year,  and  credited  on  the  call  foi  300,000 
men. 

"  H.  J.  Mills, 
"  Captain  and  Provost  Marshal." 

Hatfield  paid  Bailey,  on  such  enlistment,  $400,  and  ap- 
pended to  the  certificate  of  enlistment  as  follows : 


492    .  COURT  OF  ERRORS  AND  APPEALS. 

Mayor,  &c.,  of  Hoboken  v.  Bailey. 

"  I,  J.  T.  Hatfield,  cliosen  freeholder  of  the  second  ward 
of  the  city  of  Hoboken,  certify  that  James  T.  Hatfield  is  en- 
titled to  the  sum  of  $400  for  said  volunteer. 

"  J.  T.  Hatfield. 
"Hoboken,  N.  J.,  April  12th,  1865. 

[Endorsed] —  "  George  W.  Bailey." 

The  $400  paid  to  Bailey  by  Hatfield  was  repaid  to  the  lat- 
ter by  the  county. 

The  suit  was  brought  in  Bailey's  name,  without  any 
authority  given  him.  Hatfield  testified  that  he  never  had 
seen  or  heard  from  Bailey  after  his  enlistment. 

For  the  plaintiffs  in  error,  J.  C.  Besson  and  T.  N.  MeCarter. 

Contra,  /.  Dixon  and  C.  Parker. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  The  action  is  for  the  recovery  of  the  bounty  of 
$.350,  under  the  resolution  above  set  out.  The  judge  charged 
the  jury,  j9ro  forma,  to  find  a  verdict  for  the  plaintiff,  for  the 
amount  of  the  scrip,  with  interest  from  the  time  it  was  de- 
manded by  Hatfield,  without  leaving  any  question  of  fact  for 
their  determination.  To  sustain  an  exception  to  this  charge, 
the  plaintiffs  in  error  assign,  among  other  reasons,  as  a  ground 
of  reversal,  that  there  was  no  evidence  of  any  contract  by  the 
city  to  pay  the  plaintiff  the  bounty,  or  of  any  consideration  to 
support  a  recovery.  The  argument  was,  that  an  offer  of  a 
bounty  for  enlistments,  is  a  proposal  which  does  not  become  a 
contract  until  acceptance,  and  that  no  recovery  can  be  had 
unless  it  appears  that  the  plaintiff  was  influenced  to  volunteer 
by  the  offer,  or  at  least  had  knowledge  that  a  bounty  was 
offered  by  the  defendants,  before  he  volunteered,  so  that  it 
might  be  inferred  that  such  offer  liad  influenced  his  action. 

There  was  no  direct  evidence  that  the  plaintiff  knew  that 
any  bounty  was  offered  by  the  city.     The  proof  was  circum- 


MARCH  TERM,  1873.  493 

Mayor,  &c.,  of  Hoboken  v.  Bailey. 

stantial,  and  by  no  means  conclusive.  In  this  respect,  this 
case  differs  from  Hawthorne  v.  Hoboken,  6  Vroom  247.  If  it  be 
essential  to  the  maintenance  of  the  suit,  that  it  should  appear 
that  the  action  of  the  volunteer  in  enlisting  to  the  credit  of 
the  city,  was  prompted  by  the  expectation  of  receiving  the 
bounty  offered  by  the  resolution,  there  was  a  question  of  fact 
for  the  jury ;  and  it  was  error  in  the  charge  to  instruct  the 
jury  that  the  plaintiff  was  entitled  to  a  verdict. 

The  city  was  under  no  obligation  to  answer  the  demand 
which  had  been  made  under  the  conscription  law,  upon  its 
citizens  who  were  liable  to  draft.  The  act  of  the  legislature, 
under  the  authority  of  which  the  resolution  was  passed,  gave 
the  corporate  authorities  the  power  to  use  the  funds  of  the 
city  to  supply  volunteers,  but  did  not  enjoin  it  upon  them  as 
a  duty.  The  benefit  accruing  from  the  relief  of  the  citizens 
from  a  draft  was  to  individuals.  Whatever  aid  was  extended 
by  the  city  towards  the  accomplishment  of  that  end,  was 
purely  gratuitous,  as  an  inducement  to  persons  to  come  for- 
ward and  volunteer  to  relieve  individuals  who  were  by  law 
subject  to  the  burden  of  the  draft.  The  consideration  for  an 
undertaking  of  this  kind,  is  not  the  rendition  of  services 
beneficial  to  the  promisor.  In  this  respect,  the  resolution  of 
the  common  council  is  analogous  to  the  offer  of  a  reward  for 
the  apprehension  of  the  perpetrator  of  a  crime,  by  a  person, 
having  no  interest  in  the  subject  matter  of  the  offence.  Sucb 
an  offer  enures  as  a  contract  to  any  person  who  performs  the 
stipulated  service,  under  or  at  the  request  of  the  offerer.  Fur- 
man  V.  Parke,  1  Zab.  310. 

Upon  what  principle  does  the  right  of  recovery  in  such 
cases  rest  ?  It  cannot  be  maintained,  on  the  proposal  of  a 
reward,  or  bounty,  for  no  contract  will  be  concluded  by  a 
mere  offer ;  nor  will  it  result  from  the  fact  of  performance,, 
for  an  interest  in  the  subject  to  which  the  offer  relates,  is  not 
essential  to  the  validity  of  the  contract,  where  the  service  i.s- 
performed.  The  foundation  of  the  right  of  action  is  the 
contract  concluded  between  the  parties,  by  the  proposition  by 
the  one  side,  and  its  acceptance  by  the  other,  supported  by 

Vol.  VII.  31 


494      COURT  OF  ERRORS  AND  APPEALS. 

Mayor,  &c.,  of  Hoboken  v.  Bailey. 

the  consideration  which  resuUs  from  the  performance  of  the 
stipulated  service,  on  the  faith  of  the  promise  contained  in 
the  oifer.  Such  are  the  views  of  the  nature  of  obligations  of 
this  kind,  expressed  by  Chief  Justice  .Sluiw  in  Loving  v.  The 
•City  of  Boston,  7  Mete.  411,  and  by  the  Court  of  Appeals  of 
ISTew  York  in  Fiteh  v.  Snedaker,  38  N.  Y.  248 ;  Rowland  v. 
Lounds,  51  N.  Y.  605.  Substantially  the  same  idea  is  ex- 
pressed by  Mr.  Justice  Randolph  in  Furraan  v.  Parke.  His 
language  is :  "  No  person  is  bound  to  offer  a  reward  for  the 
apprehension  and  conviction  of  a  criminal,  but  if  he  does  so, 
he  tenders  an  agreement  to  the  first  person  who  complies  with 
its  terms,  and  he  cannot  then  withdraw  his  offer;  he  has  held 
out  inducements  on  which  the  party  has  acted,  and  he  has  no 
right  to  withdraw  his  proposition  then." 

In  the  City  Bank  v.  Bangs,  2  Edw.  Ch.  95,  which  was  a 
l>ill  of  interpleader  to  determine  which  of  several  claimants 
was  entitled  to  a  reward  offered  for  the  recovery  of  j)roperty 
•which   had   been  stolen,  Vice-Cliancellor    McCoun    adopted 
4is  the  criterion  for  determining  who  was  entitled  to  the  re- 
ward,  the   inquiry,  "  who  is  the  person  that  has  acquired  a 
iknowledge  of  tiie  facts  necessary  to  the  detection  or  discovery 
of  the  things  stolen  or  lost,  and  has  imparted  such  knowledge 
■with  the  intent  and  for  the  purpose  of  bringing  about  a  re- 
-covery  or   restoration  of  the  property,  taking  upon  himself 
the  risk  and  consequences  of  a  failure,  and    acting   with    a 
view  to  the  reward,  if  his  suspicions  and  disclosures  are  well 
founded    and    successful."     Upon    this   criterion    the   Vice- 
Ohancellor  rejected  the  claim  of  a  servant  who  first  commu- 
nicated to  her  mistress  circumstances  of  suspicion  which  she 
had  observed,  upon  which  the  mistress  acted,  and  which  led 
to  the  recovery  of  the  property.     The  reasons  assigned  for 
such  rejection  were,  that  the  conduct  of  the  servant  showed 
that  she  was  not  acting  with  a  view  to  the  reward,  but  was 
indifferent  to  any  result  that  might  follow  from  the  informa- 
tion she  gave,  and  was  not  influenced  by  any  hope  or  expecta- 
tion of  the  reward,  in  case  her  suspicions  were  well  founded. 
Jn  short,  the  rule  laid  down  and  enforced  by  the  Vice-Chan- 


MARCH  TERM,  18:3.  495 

Mayor,  &c.,  of  Hoboken  v.  Bailey. 

«ellor  was,  that  in  order  to  entitle  a  person  to  a  reward,  the 
acts  done  by  way  of  performance  must  be  done  with  a  view 
to  the  acceptance  and  performance  of  the  contract  tendered  by 
the  offer,  in  the  expectation  of  earning  the  reward  if  the  effort 
is  crowned  with  success. 

The  right  of  action  in  such  cases  being  founded  in  contract, 
for  which  no  precedent  consideration  was  paid,  and  in  which 
no  promisee  is  named,  it  would  follow  as  a  necessary  result, 
that  in  order  to  complete  the  contract  and  give  it  mutuality, 
an  assent  in  some  way  to  the  terms  of  the  offer  must  be  given. 
Fitch  V.  Snedaker,  38  N.  Y.  248;  Rowland  v.  Lounds,  51  N. 
Y.  605.  It  is  also  equally  clear  that  where  the  service  in 
itself  is  not  beneficial  to  the  promisor,  it  can  be  made  avail- 
able as  the  consideration  of  a  contract,  only  where  the  person 
performing  it  was  induced  to  do  so  by  a  request,  express  or 
implied,  on  the  part  of  the  promisor.  A  previous  request 
will  be  implied  where  the  plaintiff  voluntarily  or  by  compul- 
sion, does  that  whereunto  the  defendant  was  legally  compell- 
able, or  the  defendant  has  adopted  and  enjoyed  a  benefit  from 
the  consideration.  But  in  other  cases  the  service  will  be 
purely  gratuitous,  for  which  no  action  lies,  unless  it  was  done 
upon  an  express  request.  The  law  was  so  declared  in  the 
leading  case  of  Lavipleigh  v.  Braithwait,  Hobart  105.  That 
was  an  action  to  recover  a  reward  for  procuring  the  King's 
pardon.  The  defence  was  the  absence  of  sufficient  considera- 
tion. It  was  agreed  that  a  mere  voluntary  courtesy  will  not 
have  a  consideration  to  uphold  an  assumpsit;  "  but,"  said  the 
court,  "  if  that  courtesy  were  moved  by  a  suit  or  request  of  the 
party  that  gives  the  assumpsit,  it  will  bind ;  for  the  promise, 
though  it  follows,  yet  it  is  not  naked,  but  couples  itself  with 
the  suit  before  and  the  merits  of  the  party  procured  by  that 
suit,  which  is  the  difference."  And  it  appearing  that  the 
defendant  had  requested  the  plaintiff's  endeavor,  and  that  he 
had  made  his  endeavor  according  to  the  request,  the  plaintiff 
had  judgment.  To  the  same  effect  in  Hunt  v.  Bate.  The 
servaut  of  A  was  arrested ;  B  bails  him,  and  afterwards  A 
promises  for  this  friendship  to  save  him  harmless.     This  is 


496      COURT  OF  ERRORS  AND  APPEALS. 

Mayor,  &c.,  of  Hoboken  v.  Bailey. 

no  good  consideration  for  the  promise ;  secun  had  A  requested^ 
and  the  bailing  been  after  the  promise.  Dyei'  272  a.  Other 
eases  illustrative  of  the  necessity  of  a  previous  request,  and  of 
the  instances  in  which  the  request  will  be  implied,  and  when 
it  must  be  express,  so  as  to  have  induced  tiie  performance  in 
order  to  furnish  a  legal  consideration,  will  be  found  in  the 
English  and  American  notes  to  Lavipleigh  v.  Braithivait,  1 
Smith's  Lead.  CaB.  222,  [67*.]  I  will  refer  only  to  one  case 
decided  by  the  Supreme  Court  of  Massachusetts,  which  is  quite 
apposite  to  the  case  now  in  hand.  The  action  had  been 
brought  on  a  promise  in  w'riting  to  pay  the  masters,  clerks, 
messengers,  and  assignees  fees  in  certain  proceedings  in  in- 
solvency, if  not  otherwise  paid.  No  promisee  was  named  in  it. 
The  plaintiff  became  the  assignee,  and  performed  the  duties 
of  the  office,  and  having  received  no  compensation  for  the 
want  of  any  estate  of  the  insolvent,  sued  upon  the  agreement. 
The  agreement  was  signed  and  delivered  to  a  third  person 
before  the  appointment  of  the  plaintiff  as  assignee,  and  the 
plaintiff  had  performed  the  stipulated  service;  but  it  appear- 
ing that  the  plaintiff  had  not  seen  or  heard  of  the  paper  until 
after  he  had  accepted  the  office  and  performed  all  its  duties,  it 
was  held  that  he  could  not  recover.  The  court  held  that  i-f 
the  paper  had  been  shown  to  the  plaintiff,  and  he  had  accepted 
it,  and  had  become  assignee,  and  performed  the  services  upon 
the  faith  of  the  defendant's  promise,  there  might  have  been  a 
contract ;  but  it  not  appearing  that  he  accepted  th-e  paper  or 
performed  any  service  upon  the  strength  of  it  or  in  reliance 
upoii  it,  he  did  nothing  to  create  a  good  consideration,  and 
xnake  a  contract  upou  the  terms  of  the  agreement,  and  that  he 
could  not  recover,  although  the  condition  of  the  promissor  had 
been  literally  performed.     Ball  v.  Newton^  7  Cash.  599. 

I  am  unable  to  exclude  this  case  from  the  operation  of  the 
principles  above  stated  with  respect  to  the  necessity  of  an 
acceptance  in  order  to  form  a  contract,  and  also  of  a  request 
antecedent  to  the  enlistment,  to  give  a  consideration.  To 
effect  either  of  these  ends,  knowledge  of  the  promised  bounty ,^ 
at  the  time  of  the  enlistment  is  essential.     There  cannot  be 


MARCH  TERM,  1873.  497 

Mayor,  &c.,  of  Hoboken,  v.  Bailey. 

any  assent  or  agreement  to  an  offer  of  which  the  party  has  no 
knowledge.  Fitch  v.  Snedaker,  38  N.  Y.  248  ;  Howland  v. 
Lounds,  51  N.  Y.  605.  The  proposal  of  a  reward  which  was 
not  within  the  knowledge  of  the  person  who  happens,  or  from 
other  considerations  is  induced  to  perform  the  act  which  is 
designated  as  the  condition  on  which  the  reward  is  payable, 
cannot  by  any  rule  of  law  or  process  of  reasoning,  be  construed 
to  be  a  precedent  request,  or  to  have  operated  as  an  induce- 
ment to  do  an  act  which  is  done  in  entire  ignorance  of  the 
offer. 

The  case  usually  cited  for  the  position  that  performance  of 
the  condition  on  which  a  reward  is  promised  will  entitle  a 
party  to  recover,  though  he  acted  without  knowledge  of  the 
offer,  is  Williams  v.  Carwardine,  A  B.  &  Ad.  621.  The  jury 
found  that  plaintiff  made  the  disclosure  not  for  the  sake  of 
the  reward,  but  from  a  motive  of  revenge.  The  court  held 
that  she  was  entitled  to  recover,  and  that  the  motive  which 
influenced  her  to  give  the  information  was  immaterial.  As 
the  case  in  banc  is  reported,  it  does  not  appear  that  the  plain- 
tiff acted  without  knowledge  of  the  offer  of  a  reward.  In  the 
report  of  the  trial  at  nisi  prius,  it  is  manifest  from  the  circum- 
stances in  evidence,  and  the  argument  of  counsel,  that  the 
plaintiff's  knowledge  of  the  handbill  offering  the  reward  was 
not  disputed.  5  C.  &  P.  566.  If  the  correct  theory  of  the 
action  be  the  enforcement  of  a  contract  arising  from  an  offer, 
and  assent  thereto,  as  shown  by  the  fact  that  the  stipulated 
service  is  performed  with  the  knowledge  that  a  reward  was 
promised  for  doing  it,  as  I  think  it  is,  the  contract  having 
been  legally  concluded,  in  giving  effect  to  such  contract,  if  it 
was  performed,  the  motive  which  induced  the  party  to  make 
the  contract  or  perform  it  must  always  be  immaterial. 

The  point  under  discussion  is  not  without  adjudication  in 
the  courts  of  sister  states,  whose  decisions,  if  not  authority,  are 
entitled  to  great  respect. 

The  Supreme  Court  of  Pennsylvania  has  decided  that  the 
obligation  to  pay  bounties  being  founded  upon  a  contract 
relation,  no  one  could  compel  payment  of  a  bounty  offered, 


498      COURT  OF  ERRORS  AND  APPEALS. 

Mayor,  &c.,  of  Hoboken,  v.  Bailey. 

unless  he  volunteered  upon  the  faith  of  an  offer  of  bounties 
by  the  public  authorities.  Morgan  v,  Chester  County,  56  Penn. 
466  ;  Brecknock  Sch.  D.  v.  Frankhouser,  58  Penn.  380.  Else- 
where it  has  been  decided  that  there  was  no  ground  for  such 
an  action  except  that  of  contract,  and  that  the  liability  of  the 
town  or  city  rests  upon  the  ground  that  the  corporation  having 
offered  a  bounty,  and  the  party  having  accepted  tlie  offer  and 
volunteered  on  the  faith  of  it,  there  was  a  contract  between 
them.  Frey  v.  Fond  du  Lac,  24  Wis.  204 ;  State  v.  Brawny 
20  Wis.  287 ;  Larimer  v.  McLean  Co.,  47  111.  36. 

The  principles  announced  in  these  cases,  in  my  judgment, 
are  sound,  and  they  are  fully  recognized  in  that  class  of  cases 
in  which  a  reward  is  held  not  to  be  recoverable  on  the  basis 
of  services  rendered  before  the  reward  was  offered.  If  in  such 
cases  the  promise  is  not  enforceable  because  the  consideration 
was  exeouted  without  being  induced  by  the  promise,  it  must 
be  equally  nugatory  as  in  favor  of  a  person  who  performed 
the  service  in  ignoraHce  of  the  promise,  although  precedent. 
A  person  performs  what  at  the  time  was  required  by  him  as 
a  voluntary  courtesy,  why  should  he  be  denied  a  recovery  on 
a  promise  made  after  the  service  was  performed,  and  have  it 
awarded  to  him,  if  the  promise  was  antecedent  in  point  of 
time,  but  was  unknown  to  him,  and  did  not  prompt,  or  in  the 
least  influence  him  to  do  the  act  relied  on  ?  In  neither  case 
is  the  act  the  performance  of  a  contract. 

With  respect  to  the  proof  there  is  generally  but  little  diffi- 
culty. Where  the  action  is  for  a  reward  for  the  apprehension 
of  a  criminal,  or  the  restoration  of  lost  property,  it  rarely 
happens  but  that  something  is  done  in  performance  of  the 
condition,  after  the  party  has  knowledge  of  the  offer.  So, 
also,  in  case  of  the  claim  for  a  bounty  for  an  enlistment  to 
the  credit  of  a  particular  locality  where  no  other  bounty  is 
offered,  the  notoriety  of  the  offer,  and  the  fact  that  no  other 
supposable  reason  can  be  assigned  for  the  credit,  will  afford  a 
presumption  of  knowledge  of  the  offer,  and  of  the  intention  of 
the  volunteer  to  entitle  himself  to  the  bounty  by  complying 
with  the  condition  of  the  offer  which  the  testimony  of  the 
volunteer  may  make  conclusive. 


MARCH  TERM,  1873.  499 


State,  Wilkinson  et  al.,  v.  Inhabitants  of  Trenton. 

No  practical  injustice  can  result  from  enforcing  remedies 
in  such  cases  on  the  basis  of  ordinary  contracts.  It  is  not 
necessary  that  tiie  volunteer  should  have  received  notice  of 
the  terms  proposed,  or  should  have  given  notice  of  acceptance. 
It  is  enough  that  he  had  knowledge  at  his  enlistment  and  credit 
of  the  offer,  and  acted  with  reference  to  it,  and  fulfilled  the 
requirements  of  the  offer.    Larimer  v.  McLean  Co.,  47  III.  36. 

In  every  case  it  is  a  question  of  fact  whether  the  contract 
was  concluded  by  an  acceptance,  and  is  supported  by  an  ade- 
quate consideration.  It  was  peculiarly  so  in  the  case  now 
before  the  court.  The  facts  proved  did  not  clearly  establish 
either  of  these  propositions,  but,  on  the  contrary,  the  circum- 
stances strongly  indicated  that  the  plaintiff  volunteered  in 
ignorance  of  the  bounty  now  sued  for ;  and  was  induced  to  do 
so  solely  by  the  bounty  offered  by  the  county.  The  charge 
that  the  plaintiff  was,  as  a  matter  of  law,  entitled  to  a  verdict, 
was  erroneous,  and  the  judgment  should  be  reversed. 

For  reversal — The  Chancellor,  Chief  Justice,  Depue 
ScuDDER,  Van  Syckel,  Clement,  Dodd,  Green,  La- 
THROP,  Wales.     10. 

For  affirmance — Dalrimple.     1. 

Cited  in  Union  Locomotive  and  Express  Co.  v.  Erie  Railway  Co.,  8  Vr.  23. 


STATE,  FREDERICK  R.  WILKINSON  ET  AL.,  PLAINTIFFS  IN 
ERROR,  V.  THE  INHABITANTS  OF  THE  CITY  OF  TREN- 
TON, DEFENDANTS  IN  ERROR. 

1.  Where  public  bodies  are  entrusted,  by  statute,  with  powers  of  a  gen- 
eral nature,  it  must  appear  from  an  inspection  of  all  their  proceed- 
ings, when  properly  before  the  court,  that  they  have  kept  strictly 
within  their  limited  sphere. 

2.  It  is  the  duty  of  the  relator  to  bring  up  all  the  proceedings,  but  a 
return  that  all  proceedings  are  sent  up,  imposes  on  the  defendant  the 
burden  of  supplying  any  omission. 

3.  A  construction  will  be  adopted  to  sustain  rather  than  to  defeat  the 
proceedings,  where  it  can  fairly  be  done. 


600       COURT  OF  ERRORS  AND  APPEALS. 


State,  Wilkinson  et  al.,  v.  Inhabitants  of  Trenton. 

Parties  to  he  affected  by  such  proceedings  entitled  to  notice,  whethei 
the  statute  directs  notice  to  be  given  or  not. 

To  set  aside  an  assessment  for  inequality,  it  ninst  be  sliown  that  com- 
missioners have  adopted  an  erroneous  i)rinciple. 

If,  up  to  the  point  of  imposing  the  assessment  for  benefits,  all  the  pro- 
ceedings, have  been  strictly  correct,  a  party  cannot  complain  that  a 
larger  assessment  has  not  been  laid  upon  him. 

If  the  land  owner  permits  large  sums  of  money  to  be  expended  by  the 
city  after  the  assessment  is  made,  before  he  applies  for  a  certiorari,  the 
writ  should  not  be  allowed  where  no  re-assessment  is  provided  for ; 
and  if  allowed,  it  should  be  dismissed  by  the  Supreme  Court  when  the 
facts  become  known. 


In  error  to  the  Supreme  Court. 

For  former  proceedings  in  this  case,  see  6  Vroom  485. 
For  the  plaintiffs  in  error,  F.  Kingman  and  I.  W.  Scudder. 
For  the  defendants  in  error,  J.  S.  Aitkin  and  James  Wilson. 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J.  The  proceedings  of  the  common  coun- 
cil of  the  city  of  Trenton,  in  laying  out  a  street  between  War- 
ren and  Quarry  streets,  and  the  assessments  therefor,  were 
removed  by  certiorari  into  the  Supreme  Court,  where  the  as- 
sessments were  afiSrmed.  That  judgment  of  affirmance  is 
brought  up  on  this  writ  of  error. 

The  prosecutors  of  the  certiorari  were  assessed  for  benefits, 
resulting  to  their  lands  by  the  opening  of  the  street.  The 
reasons  assigned  for  reversal  of  the  judgment  below  will  be 
considered,  so  far  as  they  are  deemed  material,  in  the  order  in 
which  they  were  discussed. 

1.  The  first  objection  taken  to  the  validity  of  the  proceed- 
ings is,  that  the  common  council  did  not  treat  with  the  owners, 
for  the  land  taken  for  opening  the  street,  as  required  by  sec- 
tion 76  of  the  city  charter.  It  is  an  inflexible  rule,  founded 
in  the  highest  considerations  of  public  policy,  and  absolutely 
essential  to  the  protection  of  individual  rights,  that  when 
power  to  take  private  property  for  public  use  is  delegated  by 
the  legislature  to  municipal  or  other  corporations,  that  power 
must  be  strictly  pursued. 


MARCH  TERM,  1873.  501 


State,  Wilkinson  et  al.,'v.  Inhabitants  of  Trenton. 


This  principle  has  been  repeatedly  recognized  and  asserted 
in  our  courts.  State  v.  Jersey  City,  1  Butcher  309 ;  State  v. 
Jersey  City,  2  16.  444;  State  v.  Hudson  City,  3  76.  214;  State 
V.  Jersey  City,  4  Zab.  662 ;  Carron  v.  Martin,  2  Dutcher  594; 
State  V.  Orange,  3  Vi^oom  49;  A^to^e  v.  Bergen,  3  76.  491. 

It  is  equally  well  settled,  that  persons  who  exercise  a 
special  power,  whose  acts  are  authenticated  only  by  the  cer- 
tificate signed  in  each  particular  case,  must  show  on  the  face 
of  their  certificate,  that  they  have  strictly  pursued  the  au- 
thority vested  in  them. 

The  rule,  when  applied  to  public  bodies  entrusted  by 
statute  with  powers  of  a  general  nature,  where  their  acts  are 
verified  by  an  entry  in  their  minutes,  kept  by  the  proper  offi- 
cer, is  equally  stringent,  that  it  must  appear  from  an  inspec- 
tion of  all  the  proceedings  when  properly  before  the  court, 
that  they  have  kept  strictly  within  their  limited  sphere. 
State  V.  Freeholders  of  Hudson,  3  Zab.  206 ;  S.  C.  in  error 
4  76.  719. 

In  the  latter  case,  it  is  the  duty  of  the  relator  to  bring  up 
all  the  proceedings  which  he  seeks  to  review.     If  he  relies 
upon  the  failure  to  do  anything  which  should  appear  by  the 
written  proceedings  to  have  been  done,  and  the  defendants  in 
their  return  to  a  writ,  commanding  them  to  certify  and  send 
•up  "all  and  singular  their  resolutions,  records  and  proceed- 
ings, touching  the  matter  in  question,"  say,  that  they  have 
made  such  full  return,  as  required  by  the  exigency  of  the  writ 
the  presumption,  as  against  them,  will  be,  that  their  return  is 
full,  and  the  burden  will  lie  on  the  defendants  to  supply,  by 
further  return  or  evidence,  the  omission.     But  if  the  prose- 
cutor rests  bis  case  upon  any  matter  aliunde  the  written  pro- 
ceedings, he  must  verify  the  facts  by  testimony,  to  be  taken 
under  a  rule  granted  for  that  purpose.     State  v.  Newark,  1 
Butcher  399. 

This  rule  will  be  illustrated  in  the  further  consideration  of 
this  case. 

Section  76  of  the  city  charter  provides,  that  whenever  the 
•common  council  shall  determine  by  ordinance  to  lay  out  any 
street,  they  are  authorized  to  treat  with  the  owners  of  any 


502       COURT  OF  ERRORS  AND  APPEALS. 

State,  AVilkinson  et  al.,  v.  Inhabitants  of  Trenton. 

lands  necessary  for  that  purpose,  and  purchase  the  lands  for 
such  price  as  they  may  deem  reasonable,  and  the  following 
section  provides  tliat  when  the  said  common  council  cannot 
agree  with  the  owner  or  owners  of  such  required  lands,  or 
other  real  estate  for  the  same,  or  when,  by  reason  of  the  legal 
incapacity  or  absence  of  such  owner  or  owners,  no  such  agree- 
ment can  be  made,  it  shall  be  lawful  for  the  mayor  of  said 
city,  and  he  is  required,  upon  application  in  writing  of  the 
common  council,  to  appoint  commissioners  to  estimate  and 
assess  the  damages  the  owners  will  sustain  by  taking  his 
lands.  There  are  four  classes  of  land  owuers  included  in 
these  provisions. 

Those  with  whom  an  agreement  can  be  made,  those  with 
whom  an  agreement  cannot  be  made,  those  who  are  absent, 
and  those  who  have  no  capacity  to  contract.  It  is  clear  that 
the  right  to  appoint  commissioners  for  all  cases  does  not  arise, 
where  the  council  cannot  agree  with  a  single  landholder, 
either  by  reason  of  his  absence,  incapacity,  or  unwillingness 
to  negotiate,  before  any  attempt  is  made  to  treat  with  those 
who  are  under  no  disability,  because  the  section  last  referred 
to,  by  requiring  that  the  commissioners  shall  assess  upon  the 
lands  benefited  their  estimate  of  damages,  together  with  the 
sums  agreed  upon  between  the  council  and  any  land  owner, 
contemplates  an  assessment  by  commissioners  as  to  some  and 
an  agreement  by  council  with  others.  If  by  reason  of  the 
incapacity  of  a  single  owner  they  may  appoint  commissioners 
to  assess  for  all,  then  when  such  incapacity  exists  they  not 
only  may,  but  must  appoint  commissioners  for  all,  and  cannot 
agree  with  any,  for  the  act  is  imperative  and  does  not  leave  it 
to  the  discretion  of  the  council  whether  they  will  treat  or  not. 
This  would  be  an  unreasonable  and  narrow  construction  of 
the  charter. 

Its  fair  interpretation  is,  that  with  such  owners  as  are  com- 
petent to  treat  an  effort  must  be  made  to  agree,  and  then  a 
commission  appointed  for  all  cases  where  an  agreement  is  not 
made. 

It  must  therefore  appear  as  a  jurisdictional  fact  to  author 


MARCH  TERM,  1873.  503 

State,  Wilkinson  et  al.,  v.  Inhabitants  of  Trenton. 

ize  the  appointment  by  the  mayor,  that  council  did  treat  with 
the  land  owners.  It  will  be  observed  that  no  mode  is  pre- 
scribed in  which  that  treaty  shall  be  conducted,  and  in  this 
case  it  will  be  sufficient,  if  it  appears  upon  the  face  of  the 
proceedings  that  they  treated  and  failed  to  agree.  If  the 
statute  had  directed  that  the  treaty  must  be  had  through  a 
committee  of  three  impartial  citizens,  then  it  must  further 
appear  that  the  designated  mode  has  been  pursued.  The 
validity  of  the  appointment  before  us  must  be  tested  by  this 
rule. 

On  the  3d  day  of  August,  1869,  the  street  committee,  com- 
posed of  three  members  of  the  common  council,  reported  aa 
follows : 

"To  the  common  council — The  street  committee,  who  were 
authorized  by  council  to  treat  with  the  owners  of  the  land 
and  real  estate  required  for  the  laying  out  and  opening  a 
street,  commencing  on  the  easterly  side  of  Willow  street  op- 
posite to  the  present  easterly  terminus  of  Quarry  street,  and 
running  thence  to  the  westerly  side  of  Warren  street,  for  the 
same,  report,  that  they  cannot  agree  with  the  owners  thereof^ 
by  reason  of  the  legal  incapacity  of  some  of  said  owners  of  the 
same,  for  the  purpose  aforesaid. 

"  Lewis  H.  Yanhokn, 
"Wm.  M.  Lenox, 
"  Chas.  B.  Cogill, 

"Street  Committee." 

And  thereupon  follows  the  resolution  of  the  council  re- 
quiring the  mayor  to  appoint  commissioners,  in  which  it  is 
recited  that  the  street  committee  have  been  unable  to  agree 
with  the  land  owners. 

The  report  of  the  street  committee  states  that  they  could 
not  agree  with  the  land  owners  by  reason  of  the  legal  inca- 
pacity of  some  of  them. 

A  construction  will  be  adopted  to  sustain  rather  than  to 
defeat  the  proceedings,  and  this  may  fairly  be  held  to  mean^ 


604       COURT  OF  ERRORS  AND  APPEALS. 


State,  "Wilkinson  et  al.,  v.  Inhabitants  of  Trenton. 


that  none  of  the  land  owners  could  agree  upon  terms,  because 
some  were  under  legal  disability,  and  inasmuch  as  commission- 
ers must  be  appointed  in  some  cases,  they  preferred  to  have 
their  own  rights  determined  in  that  way. 

It  thus  appears  affirmatively  on  the  face  of  the  proceedings 
that  no  agreement  could  be  made  with  the  land  owners.  If, 
in  fact,  there  was  no  attempt  to  negotiate,  and  that  had  been 
established  by  the  examination  of  tiie  committee,  or  by  other 
evidence  in  the  cause,  this  objection,  if  taken  at  a  proper  time, 
would  have  been  fatal.  Until  evidence  is  submitted  to  the 
contrary,  the  presumption  will  be,  that  what  the  corporate 
body  has  said,  in  the  substantial  language  of  the  charter,  has 
been  done,  has  been  lawfully  done. 

2.  It  is  insisted  that  the  notice  of  the  meeting  of  the  com- 
missioners to  make  the  assessment  was  insufficient,  and  that  no 
opportunity  was  given  the  plaintiffs  of  being  heard. 

It  is  a  fundamental  23rinciple  that  no  person  is  to  be  affected 
by  proceedings  of  a  judicial  nature,  without  an  opportunity  to 
be  heard.  Whether  the  charter  in  this  case  makes  notice 
necessary  or  not,  natural  justice  and  well  settled  legal  jirinci- 
ple  concur  in  requiring  that  notice  must  be  given.  State  v. 
Newark,  1  Butcher  -111 ;  S.  C,  4  Zab.  666. 

The  seventy-seventh  section  of  the  charter  directs  the  com- 
missioners to  estimate  and  assess  the  damages  the  owneBs  of 
the  land  taken  will  sustain  by  laying  out  the  street;  and  in 
estimating  the  damages,  the  commissioners  must  have  due 
regard  as  well  to  the  value  of  the  land  taken  as  to  the  injury 
or  licncfit  of  the  land  owner  by  such  laying  out,  and  after 
estimating  such  damages,  the  commissioners  shall  assess  the 
amount  thereof  upon  such  lots  as  will,  in  tiieir  opinion,  be 
benefited  by  the  improvement;  both  of  which  assessments 
shall  be  embraced  in  the  report  directed  to  be  made  by  section 
seventy-eight. 

The  notice  given  by  the  mayor,  it  is  urged,  applies  only  to 
the  assessment  of  damages,  and  not  to  the  assessment  of 
benefits;  but  that  is  not  so.  The  notice  is,  that  the  commis- 
sioners appointed  to  make  an  estimate  and  assessment  of 
damages  to  land  owners,  and  to  assess  the  benefits  of  the  work 


MARCH  TERM,  1873.  505^ 


State,  Wilkinson  et  al.,  v.  Inhabitants  of  Trenton. 


upon  lots  benefited,  will  meet  at  a  time  and  place  specified,, 
to  take  the  oath  of  office,  and  that  on  the  1st  day  of  Septem- 
ber then  next,  they  would  meet  at  the  city  surveyor's  office^ 
and  after  viewing  the  land,  make  a  just  and  true  estimate 
and  assessment,  as  required  by  law.  This  was  sufficient 
notice  that  the  commissioners  would  make  the  entire  estimate 
and  assessment,  which,  by  law,  they  were  required  to 
make,  as  well  the  estimate  of  damages  as  the  assessment  of 
benefits. 

The  objection  that  there  was  not  a  more  specific  notice  ta 
the  parties  subsequently  assessed  for  benefits,  cannot  prevail,, 
because  it  was  impossible  to  specify  who  would  be  assessed, 
until  the  commissioners  met  and  determined  that  question, 
after  hearing  all  who  might  choose  to  come  before  them.  It 
was  impossible,  from  the  nature  of  the  case,  to  give  other 
than  a  general  notice,  so  that  the  commissioners  would  h& 
free  to  lay  the  imposition  according  to  their  judgment. 

3.  The  complaint  that  the  assessment  is  grossly  unequal, 
unfair  and  unjust,  cannot  avail  the  plaintiffs  here,  unless  they 
show  that  the  commissioners  proceeded  upon  an  erroneous 
principle.      Coster  v.  New  Jersey  R.  R.,  4  Zab.  730. 

There  is  an  apparent  inequality  in  the  assessment  of  lots 
lying  contiguous  to  each  other,  but  whether  it  is  real,  this 
court  cannot  say.  No  evidence  has  been  taken  to  show  the 
principle  adopted  by  the  commissioners,  and  we  must  there- 
fore presume  that  they  acted  rightly. 

4.  The  last  alleged  error  which  I  will  consider  is,  that  it 
does  not  appear  upon  the  face  of  the  report,  that  the  whole 
costs  of  the  improvement  were  assessed  by  the  commissioners. 

The  owner  of  the  lands  benefited  stands  upon  his  legal 
rights,  and  says  to  the  city,  "  you  cannot  touch  my  property 
or  impose  a  burden  upon  me,  unless  you  comply  with  the 
strictest  requirements  of  your  charter.  It  makes  no  differ- 
ence whether  the  omitted  act  injures  me  or  not,  your  power 
to  act  depends  upon  your  doing  it,  and  until  it  is  done  you 
cannot  tax  me."  The  law  wisely  throws  this  protection 
around  individual  rights,  and  the  rule  cannot  safely  be  re- 
laxed.   But  when  all  the  requirements  of  the  law  have  been 


506       COURT  OF  ERRORS  AND  APPEALS. 

State,  Wilkinson  et  al.,  v.  Inhabitants  of  Trenton. 

complied  with,  wheu  the  authority  of  the  city  to  impose  the 
burden  thereby  becomes  perfect  and  complete,  and  they  have 
the  right  to  lay  an  assessment  of  $500  on  the  plaintiff,  it  is 
not  within  the  reason  of  the  rule  that  he  should  be  allowed 
to  complain  and  set  aside  the  proceedings,  because  he  is  re- 
quired to  pay  only  $400. 

Neither  in  the  points  herein  considered,  nor  in  others  dis- 
cussed by  counsel,  all  of  which  are  well  answered  by  the 
opinion  of  the  court  below,  do  I  find  any  such  infirmity  as 
will  vitiate  the  jjroceedings. 

But  if  irregularities  did  exist,  the  certiorari  should  have 
been  dismissed  for  gross  laches  on  the  part  of  the  prosecutors 
in  suing  it  out.  They  have  permitted  the  street  to  be  opened, 
and  over  $25,000  to  be  expended  upon  it  after  the  assess- 
ment was  made  against  them,  and  after  being  thus  assured  of 
the  benefit  which  their  property  will  derive  from  the  improve- 
ment, they  seek  to  escape  their  proportion  of  the  cost  of  it. 

Under  such  circumstances,  where,  as  in  this  case,  no  re-as- 
sessment is  provided  for,  a  certiorari  should  not  be  allowed, 
and  if  allowed,  it  should,  when,  the  facts  become  known,  be 
dismissed  by  the  Supreme  Court.  Such  is  the  established 
rule  of  that  court,  and  it  should  not  be  disturbed.  State  v. 
Hudson  City,  5  Dutcher  116;  State  v.  Everett,  3  Zab.  378; 
State  V.  Water  Commissioners,  1  Vroom  249 ;  State,  Hampson, 
V.  Paterson,  ante  p.  159. 

In  my  opinion,  the  judgment  of  the  Supreme  Court  should 
be  affirmed,  with  costs. 

For  affirmance — The  Chancellor,  Chief  Justice,  De- 
PUE,  Van  Syckel,  Clement,  Dodd,  Green,  Wales.     8. 

For  reversal — None. 

Cited  in  State,  Graham,  pros.,  v.  Paterson,  8  Vr.  380 ;  Stale,  Grant,  pros., 
V.  Clark,  9  Vr.  102;  State,  Cronin,  pros.,  v.  Jersey  City,  9  Vr.  410;  State, 
■Spear,  pros.,  v.  Perth  Amboy,  9  Vr.  425 ;  State,  M.  &  E.  R.  R.  Co.,  pros.,  v. 
Hudson  Tunnel  Co.,  9  Vr.  548 ;  State,  Woodruff,  pros.,  v.  Elizabeth,  10  Vr. 
55 ;  Paret  v.  Bayonne,  10  Vr.  559 ;  State,  Freeholders,  &c.,  pros.,  v.  Road 
Commissioners,  12  Vr.  83 ;  Slate,  Boice,  pros.,  v.  Plainfield,  12  Vr.  138 ; 
Woodbridge  v.  State,  14  Vr.  262;  Bomne  v.  Logan,  14  Vr.  421;  Rinehart  v 
Cowell,  15  Vr.  360. 


MARCH  TERM,  1873.  507 


Haney  and  Scattergood  v.  Compton. 


BENJAMIN  HANEY  AND  CHAELES  SCATTERGOOD,  PLAIN- 
TIFFS  IN  ERROR,  v.  GILBERT  COMPTON,  DEFENDANT 
IN  ERROR. 

1.  The  seventh  section  of  the  act,  "for  the  preservation  of  clams  and 
oysters,"  {Nix.  Big.  131,)*  which  prohibits  the  raking  or  gathering  of 
oysters  in  any  of  the  waters  of  this  state  by  any  person,  vrho  is  not  at 
the  time  and  has  not  been  for  six  months  then  next  preceding,  an 
actual  inhabitant  and  resident  of  this  state,  makes  no  distinction  be- 
tween natural  and  planted  oysters. 

2.  A  statute  which  simply  prohibits  non-residents  on  board  a  vessel  from 
subverting  the  soil  of  the  state  and  carrying  away  her  property  and 
that  of  lier  grantees,  leaving  such  vessel  free  to  pass  and  repass,  and  go 
whithersoever  those  in  charge  of  her  desire,  is  not  a  regulation  of  com- 
merce with  foreign  nations  or  among  the  states. 

3.  Such  a  statute  is  for  the  protection  of  property,  and  is  a*,  most  an  in- 
ternal police  regulation  entirely  within  the  competency  of  the  state  to 
adopt. 

4.  A  statute  of  this  state  prohibiting  citizens  of  another  state  from  coming 
upon  the  lands  under  water  belonging  to  the  state,  and  subverting  the 
soil  and  interfering  with  the  property  there  found,  is  not  a  violation  of 
that  clause  of  the  constitution  of  the  United  States  wiiicli  ordains  that 
the  citizens  of  each  state  shall  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  in  the  several  states. 

5.  When  the  proceeding  is  in  rem  against  property  in  a  foreign  jurisdic- 
tion, found  in  the  possession  of  the  owner  or  his  agent,  and  in  use  for 
an  unlawful  purpose  wliich  carries  a  forfeiture  of  the  same,  tlie  seizure 
thereof  without  judicial  process  first  issued,  preparatory  to  regular 
trial  and  condemnation,  is  not  a  deprivation  of  property  withoat  due 
process  of  law. 

In  error  to  the  Cumberland  Circuit. 

The  suit  below  was  in  replevin. 

The  plaintiffs,  in  their  declaration,  charge  the  defendant 
with  taking  their  schooner,  the  Rhoda  L.  Loper,  in  the  waters 
of  Maurice  River  Cove,  in  the  township  of  Maurice  River, 
in  the  county  of  Cumberland,  in  this  state,  with  her  sails, 
anchors  and  appurtenances. 

*  Eev.,  p.  134. 


5U8       COURT  OF  ERRORS  AXD  APPEALS. 

Ilaney  and  Scattergood  v.  Compton. 

To  this  declaration  the  defendant  filed  avowries,  in  which 
he  admits  the  taking,  and  justifies  it  under  the  seventh  sectioa- 
of  the  act  respecting  clams  and  oysters,  {Nix.  Dig.  130,)  by 
averring  that,  on  the  day  of  the  taking,  one  John  Barret,  who 
was  not  then,  and  had  not  been  for  six  months  next  preced- 
ing, an  actual  inhabitant  and  resident  of  this  state,  was  on 
board  of  said  schooner,  and  in  the  use  and  employment  of 
her  ibr  that  purpose,  raking  and  gathering  oysters,  in  the  said 
place  in  which,  &c.,  on  his  own  account  and  benefit,  and  on 
the  account  and  benefit  of  his  employers ;  and  that  the  defend- 
ant, for  this  reason,  seized  said  schooner,  and  gave  immediate 
information  to  two  justices  of  the  peace,  &c.,  as  required  by 
the  act,  and  for  such  cause  had  the  schooner  in  his  possession 
at  the  time  of  the  replevying  of  her  by  the  plaintiffs,  and  there- 
fore prayed  her  return. 

To  these  avowries  of  the  defendant,  the  plaintiffs  filed  two 
pleas  in  bar,  in  which  they  do  not  traverse  any  fact  alleged 
in  the  avowries,  but  aver  that  the  said  oysters  which  the  said 
John  Barret  was  raking  and  gathering  were  oysters  which 
had  been  planted  where  there  was  no  natural  growth  of 
oyster?:,  by  one  John  Haley,  and  by  him  sold  to  one  Charles 
Ogden,  by  whom  they  had  been  sold  to  the  plaintiffs,  at  whose 
request  the  said  John  Barret  was  gathering  them  ;  and  that 
the  schooner,  when  seized,  had  a  coasting  license  from  the 
government  of  the  United  States. 

To  these  pleas  of  the  plaintiffs,  the  defendant  filed  a  de- 
murrer, and  after  argument,  judgment  was  given  for  the 
defendant. 

Tlie  following  reasons  were  assigned  for  the  judgment  by 
Van  Syckel,  Judge. 

"  This  suit  is  brought  to  recover  possession  of  the  schooner 
Rhoda  L.  Loper,  seized  by  the  defendant  for  an  alleged 
violation  of  the  seventh  section  of  the  oyster  law,  in  Maurice 
River  Cove,  in  the  county  of  Cumberland,  on  the  7th  day  of 
June,  1869. 

"  The  defendant  avows  the  taking,  because  he  says  that  one 
John  Barret  was  on  board  of  said  schooner,  and  in  the  use 


MARCH  TERM,  1873.  509 


Haney  and  Scattergood  v.  Compton. 


and  employment  of  her  for  that  purpose,  raking  and  gather- 
ing oysters  on  his  own  account  and  benefit,  and  on  the  account 
and  benefit  of  his  employer;  and  that  the  said  John  Barret 
was  not,  on  said  day,  and  had  not  been  for  six  months  next 
preceding  said  day,  an  actual  inhabitant  and  resident  of  the 
State  of  New  Jersey.  The  plaintiffs  pleaded  to  this  avowry^ 
admitting  the  facts  stated,  and  setting  up,  in  avoidance,  that  at 
the  time  of  such  taking,  the  said  vessel  was  engaged  in  raking 
oysters  planted  by  a  citizen  of  New  Jersey,  who,  before  that 
time,  had  sold  them  to  the  plaintiffs,  and  that  such  oysters 
were  planted  where  there  was  no  natural  growth  of  oysters. 

"  Upon  demurrer  interposed  by  the  defendant  to  this  plea, 
two  questions  were  started  : 

"  First.  Whether  the  seventh  section  of  the  oyster  law  in- 
terdicts the  taking  of  planted  oysters. 

"  Second.  If  so,  whether  the  section  is  constitutional. 
"  Further  consideration  has  confirmed  my  views  expressed 
in  a  former  opinion,  upon  the  first  point,  which  will  now  be 
repeated.  The  oyster  act,  as  originally  passed  March  27th,, 
1719  {Nevill  86j,  prohibited,  by  its  first  section,  any  person 
whatsoever,  from  taking  oysters  between  May  10th  and  Sep- 
tember 1st,  and  by  its  second  section,  forbid  any  person  not 
residing  in  this  province,  from  taking  oysters  and  putting 
them  on  board  a  vessel  not  wholly  owned  by  a  resident.  At 
the  time  this  act  was  passed,  the  business  of  planting  oystera 
was  unknown,  but  came  into  use  prior  to  the  revision  of  the 
laws  in  1820,  at  which  date,  the  proviso  in  section  one,  'that 
nothing  in  that  section  shall  apply  to  planted  oysters,'  first 
appears.  That  the  first  section,  revised  in  1820,  without  the 
proviso,  would  have  applied  to  both  natural  and  planted 
oysters,  cannot  be  questioned,  if  the  language  is  given  its 
usual  significance,  and  that  it  was  so  understood  at  that  day, 
is  evinced  by  the  fact  that  it  was  deemed  necessary  to  add  that 
proviso  to  the  first  section,  to  save  planted  oysters  from  its 
operation.  The  seventli  section  of  the  present  act  was  sub- 
stantially enacted  at  the  same  time  with  section  one,  and  run 
parallel  with  it,  and  before  the  revision  in  1820,  the  two  sec- 
VoL.  VII.  32 


610       COURT  OF  ERRORS  AND  APPEALS. 

Haney  and  Scattergood  v.  Compton. 

tions  were  co-extensive,  and   applied   to   the  same  class  of 
oysters. 

"  The  fact,  therefore,  that  in  the  revision  in  1820,  section 
one  was  adopted  with  the  proviso,  saving  planted  oysters,  and 
section  seven  without  such  proviso,  shows  indubitably,  that  it 
was  intended  that  the  latter  section  should  apply  to  all  oysters, 
whether  natural  or  planted;  otherwise,  the  proviso  incor- 
porated in  section  first  was  entirely  unnecessary,  and  that 
section  would,  without  the  added  words,  apply  only  to  natural 
oysters.  There  is  no  rule  of  statutory  construction  M'hieh 
will  permit  language  so  comprehensive  to  be  so  restricted  in 
its  application.  The  seventh  section  must  be  held  to  exclude 
non-residents  from  taking  planted  oysters  in  our  waters.  Is 
this  act  so  interpreted,  in  conflict  with  any  provision  of  the 
federal  constitution  ?  The  inhibition  relied  upon  is  found  in 
the  following  citations: 

^'  1.  The  second  section  of  article  fourth  :  'Tiie  citizens  of 
«ach  state  shall  be  entitled  to  all  privileges  and  immunities  of 
■citizens  in  the  several  states.'  2,  The  third  clause  of  section 
■eighth,  article  first :  *  That  congress  shall  have  power  to  regu- 
late commerce  with  foreign  nations,  and  among  the  several 
states,  and  with  the  Indian  tribes.'  Both  these  provisions 
-were  elaborately  discussed  by  Judge  Bushrod  Washington,  in 
Corjield  v.  Coryell,  4  Wash.  C.  C.  Rep.  371,  in  which  he  held 
that  it  was  competent  for  state  legislation  to  prohibit  tlie  tak- 
ing of  natural  oysters  by  non-residents,  from  beds  within  its 
territorial  limits.  There  is  no  grant  of  power  to  the  general 
government,  which  impairs  the  right  of  the  states  to  regulate 
the  use  of  their  public  property,  provided  the  free  enjoyment 
of  the  highways  for  the  purposes  of  commercial  intercourse 
or  inter-state  trade  is  not  interfered  with. 

"  The  grant  of  power  to  congress  to  regulate  commerce  on 
the  navigable  waters  of  the  state,  contains  no  cession  of  the 
jus  'privatum  which  the  state  has  in  the  soil  covered  by  its 
waters.  The  section  in  question  does  not  restrain  the  free 
use  of  our  waters  for  the  purposes  of  trade  and  intercourse, 
and  is  therefore  not  a  regulation  of  commerce:  nor  is  this  sec- 


MARCH  TERM,  1873  511 


Haney  and  Scattergood  v.  Compton, 


tion  obnoxious  to  the  charge,  that  it  attempts  to  restrict  the 
carrying  of  articles  of  trade  to  a  class  of  vessels.  All  persons 
and  all  vessels  may  legitimately  engage  in  the  business  of 
carrying  oysters  after  they  have  been  gathered  and  become  an 
article  of  merchandise.  There  is  no  encroachment  in  this 
legislation,  upon  the  exclusive  jurisdiction  of  the  national  leg- 
islature over  the  subject  of  commerce.  But  the  plaintiffs  rely- 
chiefly  upon  that  clause  of  the  constitution  which  declares 
that  'the  citizens  of  each  state  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several  states.' 

"Judge  Washington  limits  this  expression  to  those  {)rivi- 
leges  and  immunities  which  are  in  their  nature  fundamental, 
and  belong  of  right  to  the  citizens  of  all  free  governments, 
such  as  protection  by  the  government,  the  enjoyment  of  life 
and  liberty,  the  right  to  buy,  bold  and  dispose  of  property, 
to  pass  through  and  reside  in  the  state,  and  to  be  exempt 
from  impositions  higher  than  those  paid  by  other  citizens  of 
tlie  state.  This  view  is  accepted  by  Chancellor  Kent,  in 
Vol.  2  of  his  Commentaries,  page  71.  Among  these  funda- 
mental rights  cannot  be  included  the  right  to  participate  in 
the  enjoyment  of  the  private  property  of  the  state.  The  soil 
of  Maurice  river  cove,  and  the  oysters  upon  it,  were  the 
■property  of  the  State  of  New  Jersey,  and  even  one  of  her 
own  citizens  could  not  plant  upon  or  take  oysters  from  it 
without  her  consent.  No  citizen  of  the  United  States  has  a 
right  to  engage  in  the  employment  of  taking  the  private 
property  of  the  state,  or  of  an  individual,  without  the  con- 
sent of  the  state  or  the  individual  owner.  The  full  owner- 
ship of  this  species  of  property  empowers  the  state  to  declare 
who  shall  take  it,  upon  what  terms  it  shall  be  taken,  and  by 
what  means  it  shall  be  removed.  A  citizen  of  Pennsylvania 
■cannot  claim  a  right  to  acquire  the  property  of  New  Jersey 
in  a  manner  different  from  that  in  which  New  Jersey  agrees 
to  dispose  of  it,  nor  can  he  successfully  assert  a  right  to  be 
employed  on  a  vessel  to  take  private  property  without  the 
consent  of  the  owner,  or  to  take  it  contrary  to  the  condition 
upon  which  the  vendor  of  his  employer  holds  it.     His  un- 


512       COURT  OF  ERRORS  AND  APPEALS. 

Haney  and  Scattergood  v.  Compton. 

questionable  riglit  to  employment  upon  all  vessels  at  the 
option  of  the  employer,  for  all  lawful  purposes,  cannot  be 
the  foundation  of  a  claim  to  be  employed  for  an  unlawful 
purpose. 

"  The  law-making  power  has  given  to  all  the  residents  of 
this  state  the  right  to  go  upon  her  private  property  in  a  speci- 
fied manner  and  take  oysters;  this  privilege  might,  lawfully, 
have  been  even  made,  circumscribed  by  limiting  it  to  a  por- 
tion of  such  inhabitants,  to  the  exclusion  of  others.  The 
persons  from  whom  the  plaintiffs  purchased  the  planted 
oysters,  although  residents  in  this  state,  were  interdicted  by 
the  statute  from  taking  them  with  a  vessel  having  on  board 
a  non-resident,  and  therefore  the  plaintiffs,  who  are  non-resi- 
dents, are  now  claiming  rights  superior  to  those  enjoyed  by 
the  inhabitants  of  the  state. 

"  The  state  having  title  to  the  soil  of  the  cove,  might  claim 
absolute  property  in  all  oysters  planted  upon  it,  regarding 
the  return  of  such  oysters  to  their  natural  element  by  a  mere 
trespasser,  as  an  abandonment  by  the  former  owner.  Her 
own  residents  are,  by  favor,  permitted  to  plant  and  take  them, 
and  to  acquire  a  property  in  them,  subject  to  certain  pre- 
scribed conditions,  which  the  law  maker  has  deemed  essential 
to  prevent  spoliation  of  the  beds.  The  condition  imposed  is, 
that  they  shall  be  taken  from  the  beds  by  New  Jersey  crews, 
and  this  limitation  will  apply  to  the  same,  and  no  greater 
extent,  when  a  resident  of  Pennsylvania  acquires,  by  pur- 
chase or  otherwise,  the  right  of  property  which  a  resident  of 
New  Jersey  may  have  in  oysters  lying  in  the  beds  of  our 
waters.  The  latter  cannot  pass  to  the  former  a  title  better 
than  he  himself  has. 

"  The  conclusion  is,  that  the  validity  of  the  state  law  is  un- 
shaken, and  there  must  be  judgment  for  the  defendant,  with 
costs." 

A  writ  of  error  was  brought  to  remove  the  judgment  and 
proceedings  to  this  court. 


MARCH  TERM,  1873.  513 


Haney  and  Scattergood  v.  Compton. 


For  plaintiffs  in  error,  Mitchell  and'  P.  L.  Voorhees. 

1.  The  seventh,  ninth  and  tenth  sections  of  the  act  enti- 
tled "  An  act  for  the  preservation  of  clams  and  oysters," 
a])proved  April  14th,  1846,  under  which  the  defendant  seeks 
to  justify,  apply  only  to  oysters  growing  on  natural  banks  or 
beds,  and  not  to  oysters  planted  and  growing  where  natural 
oysters  do  not  grow. 

2.  The  act  under  which  the  defendant  seeks  to  justify  is 
contrary  to  sections  6,  7,  and  8  of  article  I  of  the  constitution 
of  New  Jersey,  and  to  section  8  of  Article  I,  section  2  of 
Article  IV  of  the  constitution  of  the  United  States,  and  to 
sections  4,  5,  and  14  of  the  amendments  of  the  constitution 
of  the  United  States,  and  is  unconstitutional  and  void. 

For  defendant  in  error,  F.  F.  Westcott  and  F.  T.  Freling- 
huysen. 

The  determination  of  this  controversy  involves  the  consid- 
eration of  the  terms  of  the  seventh  section  of  the  "Act  for  the 
preservation  of  clams  and  oysters."     Nix.  Dig.  131. 

The  defendant  having  pleaded  the  act  as  his  defence,  the 
plaintiffs,  at  the  argument  below,  endeavored  to  avoid  it  upon 
two  grounds : 

(1.)  Upon  the  ground  that  it  was  repugnant  to  the  consti- 
tution of  the  United  States. 

(2.)  Upon  the  ground  that,  if  constitutional,  it  was  not  in- 
tended to  inhibit  the  gathering  of  planted  oysters,  but  only 
those  of  natural  growth. 

I.  As  to  the  question  of  the  constitutionality  of  our  act.  ' 
The  plaintiffs  claim  that  the  act  is  repugnant  to  the  federal 

constitution  in  two  particulars : 

(a.)  To  the  third  clause  of  section  8,  article  1 : 

"  Congress  shall  have  power  to  regulate   commerce  with 

foreign  nations,  and  among  the  several  states,  and  with  th'e 

Indian  tribes." 

It  was,  of  course,  with  a  view  of  claiming  the  protection 

of  this  clause,  that  the  plaintiffs  pleaded  that  their  vessel,  at 


514   COURT  OF  ERRORS  AND  APPEALS. 

Haney  and  Scattergood  v.  Compton. 

the  time  of  her  seizure,  had  a  coasting  license  from  tlie  United 
States  government. 

This  precise  defence,  in  an  analogous  case  of  a  seizure  of  a 
vessel  for  an  infraction  of  a  similar  oyster  law  of  the  State  of 
Maryland,  was  pronounced  untenable  by  the  Supreme  Court 
of  the  United  States  in  the  case  of  Smith  v.  The  State  of  Mary- 
land, 18  How.  71. 

And  also  in  the  case  of  a  seizure  under  our  own  act,  in  the 
vei'y  same  Maurice  river  cove,  by  the  Circuit  Court  of  the 
United  States  for  the  district  of  Pennsylvania  and  New  Jer- 
sey.    Corjield  v.  Coryell,  4  Wash.  C.  C.  Rep.  371. 

There  is  nothing  in  our  law  to  prevent  navigation  ;  nothing 
which  hinders  the  plaintiffs  from  passing  and  repassing 
whither  they  will,  on  the  surface  of  the  sea ;  it  simply  pro- 
hibits them  from  unlawfully  subverting  the  soil  of  the  state, 
many  fathoms  below.  A  non-resident  has  no  right  to  tear  up 
the  soil  of  New  Jersey  by  dredges,  without  her  consent. 

That  the  soil  of  Maurice  river  cove  is  New  Jersey  soil,  is 
admitted,  as  we  have  seen,  by  the  pleadings,  and  has  been  so 
declared  by  all  the  decisions  of  our  courts,  from  the  earliest 
cases  to  the  latest.  Arnold  v.  Mundy,  1  Halst.  1 ;  Gough  v. 
Bell,  3  Zah.  624 ;  Stevens  v.  Paterson  and  Newark  B.  R.,  5 
C.  E.  Green  126.  And  also  by  the  Circuit  Court  of  the  U 
S.  for  this  circuit.  Corjield  v.  Coryell,  4  Wash.  C.  C.  Rep, 
371.  And  also  by  the  Supreme  Court  of  the  United  States. 
3Iartin  v.   Waddell,  16  Peters  367. 

(6.)  The  other  clause  of  the  Federal  Constitution,  to  which 
it  was  claimed  that  our  act  is  repugnant,  is  the  2d  section  of 
Article  IV. 

"  The  citizens  of  each  state  shall  be  entitled  to  all  the  privi- 
leges and  immunities  of  citizens  in  the  several  states." 

It  will  be  observed  that  this  section  of  the  Federal  Consti- 
tution is  only  applicable  to  cases  in  which  t-lie  parties,  plain- 
tiff and  defendant,  are  residents  of  different  states.  The 
plaintiffs  in  this  case  can  derive  no  benefit  from  this  or  any 
other  provision  of  that  constitution  which  aims  to  secure  equal 
rights  to  the  citizens  of  the  several  states,  because  it  does  not 


MARCH  TERM,  1873.  515 

Haney  and  Scattergood  v.  Compton. 

appear  from  the  pleadings  but  that  they  are  residents  of  New 
Jersey. 

By  the  settled  principles  of  pleading,  an.y  ambiguity  in  the 
plaintiffs'  pleading  will  be  taken  against  them.  And  the 
court  will  not  travel  outside  the  record  to  imply  any  beneficial 
matter  which  they  might  have  pleaded.  Precisely  this  prin- 
ciple was  declared  in  Downham  et  al.  v.  Alexandria,  10  Wall, 
173. 

The  question  properly  raised  by  the  pleadings  is  this  : 

Can  a  resident  of  New  Jersey  lawfully  employ  a  person 
who  is  not  at  the  time  an  actual  inhabitant  and  resident  of 
this  state,  and  who  has  not  been  such  actual  inhabitant  and 
resident  for  six  months  next  preceding  thereto,  to  rake  and 
gather  oysters  in  the  waters  of  Maurice  river  cove,  in  Cum- 
berland county  ? 

The  act  above  cited  expressly  declares  that  it  shall  not  be 
lawful  for  such  a  person  to  do  such  an  act,  "  on  his  own 
account  and  benefit,  or  on  account  and  benefit  of  his  em- 
ployer." 

There  is  no  ambiguity  in  this  language,  and  a  strong  argu- 
ment for  the  right  of  our  legislature  to  use  it  is  to  be  found 
in  the  consideration  that  almost  all,  if  not  all,  the  states  that 
own  soil  adapted  to  the  growth  of  oysters,  have  passed  laws 
for  their  protection  similar  to  our  own,  and  that  no  one  of 
these  laws,  so  far  as  known  to  the  counsel  of  the  defendant, 
has  ever  been  declared  unconstitutional,  but,  on  the  contrary, 
have  been  declared  constitutional  by  a  tribunal  of  no  less 
authority  than  the  Supreme  Court  of  the  United  States.  Laws 
of  Marykmd,  1831,  ch.  249. 

The  second  section  of  this  act  is  almost  identical  with  the 
seventh  section  of  our  own,  and  enacts  "  that  it  shall  not  be 
lawful  for  any  person  or  persons,  who  has  or  have  not  resided 
in  this  state  at  least  twelve  months  immediately  previously 
thereto,  to  catch  or  take  any  oyster  in  the  said  waters,  under 
the  penaty  of  ^100,  to  be  recovered  from  each  person  so 
offeniling." 


516        COURT  OF  ERRORS  AND  APPEALS. 


Haney  and  Scattergood  v.  Compton. 


And  the  fourth  section  provides  for  the  forfeiture  of  the 
vessel,  in  case  the  penahy  be  not  paid. 

This  law,  and  a  supplement  passed  in  1833,  chapter  254, 
came  up  for  review  before  the  Supreme  Court  of  the  United 
States,  in  the  case  of  Smith  v.  State  of  Maryland,  18  How. 
71,  and  there  held  to  be  coiistitutional,  although  the  counsel 
of  the  plaintiffs  in  error  had  urged  their  unconstitutionality 
for  the  precise  reasons  urged  below  by  the  counsel  of  the 
plaintiffs  in  error  in  this  cause,  against  the  constitutionality  of 
our  own  law. 

The  laws  of  Virginia  contain  prohibitions  of  a  similar 
character. 

"  If  any  person  other  than  a  citizen  of  this  state  shall  take 
oysters  or  terrapins,  or  plant  oysters  in  the  waters  thereof,  he 
shall  forfeit  $500"  Matthews'  Digest  of  the  Laws  of  Virginia 
(ed.  0/1857,)  Vol.  II,  p.  245. 

Our  own  law,  like  that  of  Maryland  and  Virginia,  has 
been  for  a  long  time  upon  the  statute  book,  substantially 
since  1719,  and  during  this  century  and  a  half,,  though  often 
assailed  in  the  courts,  it  has  never  been  done  successfully, 
but,  as  will  hereafter  be  seen,  has  been  fortified  by  a  series 
of  judicial  determinations.  The  right  of  tlie  legislature  to 
pass  it,  results  directly  from  the  ownership,  by  the  state,  of 
the  lauds  under  her  waters,  (see  cases  above  cited,)  and  from 
this  ownership  a  right  enures  to  the  legislature  either  to  alien 
them,  by  grant,  to  individuals  in  fee,  [Gough  v.  Bell,  1  Zab. 
156  ;  State  v.  Common  Council  of  Jersey  City,  1  Butcher  525, 
or  to  lease  them  for  a  term  of  years,  which  is  a  right  that  it 
exercised  as  anciently  as  1824,  by  passing  an  act  making  it 
lawful  for  certain  persons  to  use  a  portion  of  them  as  a  plant- 
ing ground  for'  oysters,  at  an  annual  rent. 

See  act  entitled  ''  An  act  to  encourage  and  regulate  the 
planting  of  oysters  in  the  township  of  Perth  Amboy."  Laws 
of  New  Jersey,  1824,  p.  28. 

"The  state,  as  representing  the  people,  has  the  right  to 
regulate  the  common  rights  and  privileges  of  fishing."    Moul- 


MARCH  TERM,  1873.  617 


Haney  and  Scattergood  v.  Compton. 


ion  V.  Libbey,  37  Maine  472,  494;  Fuller  v.  Spear,  16/5. 
417  ;  Kean  v.  Rice,  12  Serg.  &  B.  203. 

And  the  state  not  only  has  the  right  to  make  such  regula- 
tions and  to  define  the  terms  upon  which  her  soil  may  be  used 
for  that  [)urpose,  but  in  so  doing  she  is  not  hampered  by  any 
of  those  restrictions  of  public  policy  which  may  limit  the 
grants  of  individuals.  The  state,  as  parens  patrice,  is  the  sole 
judge  of  her  policy.  And  in  the  exercise  of  her  judgment, 
with  a  view  (1)  to  save  her  beds  from  spoliation,  and  (2)  to 
preserve  for  the  benefit  of  her  own  children  the  sole  use  of 
her  soil,  not  natural  beds  of  the  oyster,  but  adapted  to  the 
planting  of  them,  the  state  imposed  the  condition  upon  the 
use  of  her  lands  for  the  growing  of  oysters,  that  when  they 
were  lifted  thence  it  siiould  be  done  by  Jersey  hands. 

From  this  conclusion  it  necessarily  follows  that  even  if  the 
plaintiffs  were  citizens  of  another  state,  they  could  not  be  pro- 
tected by  the  section  of  the  federal  constitution  cited  at  the 
head  of  this  sub-title.  That  section  does  not  give  citizens  of 
other  states  rights  superior  to  those  of  our  own  citizens. 

Tins  is  the  principle  involved  in  the  case,  which  is  the 
latest  on  this  subject,  of  Ward  -v.  State  of  Maryland,  12  Wal- 
lace 418.  The  writ  of  error  in  that  cause,  brought  up  for 
examination  a  statute  of  Maryland  which  compelled  resident 
traders  to  pay  a  specified  tax  on  sales  of  personal  property, 
and  compelled  non-resident  traders  to  pay  a  much  higher  tax 
on  sales  of  the  same  kind. 

Held  to  be  contrary  to  that  section  of  the  federal  constitu- 
tion now  under  discussion. 

The  court  says : 

"  This  clause  secures  and  protects  the  right  of  a  citizen  of 
one  state  to  pass  into  any  other  state  of  the  Union  for  the  pur- 
pose of  engaging  in  lawful  commerce,  trade,  or  business, 
without  molestation ;  to  acquire  personal  property,  to  take  and 
hold  real  estate,  and  to  be  exempt  from  any  higher  ta-xes  or 
excises  than  are  imposed  by  the  state  on  its  own  citizens." 

The  principle  enunciated  in  Ward  v.  Maryland  is  in  har- 
mony   with    the   previous   declarations   of    the   same   court. 


518   COURT  OF  ERRORS  AXD  APPEALS. 

Haney  and  Scattergood  v.  Compton. 

Paul  V.  Virginia,  S  Wallace  168;  Doionnam  v.  Alexandria,. 
10  Ih.  173;  Ducat  v.  Chicago,  lb.  410;  Conner  v.  Elliot, 
18  How.  591. 

It  will  be  found  that  in  all  cases  in  which  state  laws  have 
been  held  to  be  unconstitutional,  as  trenching  upon  the  privi- 
leges and  immunities  of  the  citizens  of  the  several  states,  that 
the  state  legislature  has  attempted  to  define  the  way  in  which 
individuals  may  use  their  property — to  define  the  way  in 
which  property  may  be  used  in  which  the  state  has  no  inter- 
est; and  not,  as  in  the  present  case,  to  define  the  way  in 
which  its  own — the  state's  own — property  may  be  used. 

In  concluding  this  branch  of  the  argument,  it  will  only  be 
necessary  to  cite  the  cases  confirming,  impregnably,  the  con- 
stitutionality of  our  law.  Corfield  v.  Coryell,  4  Wash.  C.  C. 
Rep.  371  ;  Keene  v.  Rice,  12  Sergeant  &  Raicle  203. 

John  Guyant  v.  Gilbert  Compton  and  Daniel  T.  Hoioell. 
In  1871,  our  legislature  passed  an  act  supplemental  to  the  act 
of  1846,  and  designated  to  enforce  it,  by  which  the  defend- 
ants above  named,  (of  whom  Gilbert  Compton  is  the  same 
Gilbert  Compton  who  defends  this  suit,)  were  appointed  pub- 
lic officers,  and  charged  with  the  duty  of  executing  it.  To 
restrain  them  from  so  doing,  a  bill  in  equity  was  filed  in  the 
United  States  Circuit  Court  for  this  district,  in  which  the 
complainant,  a  citizen  of  Pennsylvania,  was  represented,  with 
other  counsel,  by  the  present  Attorney- General  of  that  com- 
monwealth. A  rule  to  show  cause  why  a  preliminary  injunc- 
tion should  not  issue  against  the  defendants  was  granted  by 
Mr.  Justice  Strong,  of  the  United  States  Supreme  Court^ 
and  the  argument  on  this  motion  was  had  before  him  and 
Judge  Nixon,  in  the  city  of  Philadelphia,  in  the  summer  of 
1871.  The  ground  on  which  the  injunction  was  sought,  was 
the  unconstitutionality  of  our  laws,  and  their  infringement 
upon  the  rights  of  the  citizens  of  Pennsylvania.  The  injunc- 
tion was  refused,  and  the  complainant  has  never  taken  any 
further  step  in  the  cause. 

The  constitutionality  of  our  act  having  been  thus  affirmed 
by  the  state  courts  both  of  Pennsylvania  and  New  Jersey,  by 


MARCH  TERM,  1873.  51» 

Haney  and  Scattergood  v.  Compton. 

the  United  States  Court  of  this  district,  and  also,  substan- 
tially,  by  the  United  States  Court  of  New  York — by  all  the 
courts  having  jurisdiction  of  the  disputed  territory — it  is 
thought  that  the  case  of  the  defendant  stands  on  authority,  as 
well  as  reason,  that  cannot  be  questioned. 

It  is  furtiier  to  be  stated,  that  when  the  troubles  with  the 
citizens  of  Pennsylvania  began,  after  the  enactment  of  the 
law  of  1871,  the  mayor  of  the  city  of  Philadelphia  and  the 
Attorney-General  of  Pennsylvania  addressed  letters  to  the 
governor  of  this  state,  pointing  out  the  supposed  unconstitu- 
tionality of  our  law  of  1846.  The  governor  took  the  advice 
of  our  present  Attorney-General,  who  gave  a  careful  opinion 
in  writing,  that  the  law  was  constitutional. 

II.  The  other  objection  urged  against  our  law,  by  counsel 
in  the  court  below,  was,  that  its  seventh  section  was  only 
intended  to  interdict  the  taking'of  natural,  and  not  of  planted 
oysters. 

It  is  difiBcult  to  see  how  such  an  apprehension  of  the 
meaning  of  the  language  of  the  section  can  be  reasonably 
entertained. 

The  word  used  is  "oysters;"  the  thing  forbidden  to  be 
taken  is  "  oysters;"  a  word  which  includes  in  its  meaning  all 
oysters,  being  a  generic  term  including  the  two  species,  natu- 
ral and  planted ;  these  "  oysters "  are  forbidden  to  be  taken 
"  in  any  of  the  rivers,  bays,  or  waters  of  this  state.''  Now, 
it  was  matter  of  familiar  knowledge  to  the  legislature  that 
there  were  many  of  the  "rivers,  bays,  and  waters"  of  this 
state  in  wiiich  there  were  no  natural  oysters  at  all,  but  only 
planted  ones,  and  that  in  many  other  of  the  waters  of  this 
state  there  were  both  kinds  of  oysters;  but  the  words  used 
are  all  comprehensive,  embracing  both  kinds  of  waters,  having 
neither  any  excepting  clause  saving  those  waters  in  which 
only  planted  oysters  were  to  be  found,  nor  any  excepting 
clause  saving  planted  oysters. 

The  effect  of  this  reasoning  cannot  be  avoided  by  averring 
that  the  legislature  used  the  generic  term  unadvisedly.     The 


520       COURT  OF  ERRORS  ANT)  APPEALS. 

Haney  and  Scattergood  v.  Compton. 

act  is  full  of  proof  that  they  used  the  word  which  they 
meant,  and  meant  what  the  word  they  used  would  naturally 
imply. 

It  is  a  familiar  principle,  iu  the  construction  of  statutes, 
that  other  portions  of  the  same  act  will  aid  in  the  interpreta- 
tion of  any  particular  section. 

That  the  legislature,  when  they  passed  this  act,  were  aware 
of  the  distinction  between  natural  and  planted  oysters,  is 
apparent  in  its  very  first  section. 

In  the  enacting  clause  of  this  section,  it  is  declared  that  no 
person  shall  rake,  between  certain  dates,  "  on  any  oyster- 
bed,"  or  gather  "any  oysters;"  general  words  are  used  like 
those  employed  iu  the  seventh  section.  It  then  occurs  to  the 
legislature  tiuit  the  words  they  have  used  will  prohibit  per- 
sons who  have  planted  oysters  from  taking  them  for  their 
own  use,  which  they  do  not  intend,  and  so  they  annex  a  pro- 
viso saving  planted  "oysters.  The  legislature  here  shows 
that  they  knew  the  distinction  between  natural  and  planted 
oysters,  and  knew  how  to  use  apt  words  to  distinguish  them. 
If,  then,  when  they  used  the  same  general  term,  ''  oysters," 
in  the  enacting  clause  of  the  seventh  section,  they  intended  to 
-confine  its  application  to  natural  oysters,  why  did  they  not 
here,  as  iu  the  first  section,  introduce  a  limiting  proviso? 

A  reference  to  other  sections  of  the  act  will  compel  this 
obvious  construction. 

The  fourth  section  contains  matter  that  is  very  suggestive. 
It  prohibits  the  sale  of  "oysters"  between  May  and  Sep- 
tember. The  word  used  is  the  same  as  that  used  in  the 
seventh  section.  The  fourth  section  is  intended  to  protect  the 
public  health  by  prohibiting  the  sale  of  oysters  at  that  season 
of  the  year  when  they  are  unwholesome  food;  and  in  so  far 
as  this  section  of  tlje  act  is  concerned,  it  is  clear  that  it  would 
be  broken  by  the  sale  of  planted  oysters,  they  being  just  as 
unwholesome  as  natural  oysters. 

The  twenty-second  section  is  conclusive. 

This  makes  the  taking  of  "  oystei's"  by  a  non-resident, 
indictable.     It  is  supplemental  to  the  seventh  section,  which 


MARCH  TERM,  1873.  521 


Haney  and  Scattergood  v.  Compton. 


is  the  subject  matter  of  the  controversy  before  the  court,  by- 
adding  an  additional  penalty  to  its  infraction.  The  same 
words,  "  oysters,  clams  and  shell-fish"  are  used  In  both  sections. 
In  the  twenty-second  section,  the  word  "oysters"  clearly 
embraces  planted  oysters,  for,  otherwise,  the  absurd  conse- 
quences would  ensue  that  it  would  be  indictable  to  take 
natural  oysters,  in  which  no  citizens  has  invested  any  labor 
or  money,  and  not  indictable  to  take  planted  oysters,  in 
which  any  citizen  may  have  invested  his  whole  fortune. 

The  opinion  of  the  court  was  delivered  by 

Dalrtmple,  J.  This  action  of  replevin  was  brought  for  the 
taking  of  a  schooner,  and  the  furniture  and  apparel  thereof  be- 
longing to  the  plaintiffs.  The  defendant  admits  the  taking,  and 
justifies  the  same  on  the  ground,  that  at  the  time  when  the  ves- 
sel was  seized  she  was  in  the  county  of  Cumberland,  in  thi& 
state,  and  had  on  board  a  person  not  an  actual  inhabitant  and 
resident  of  this  state,  who  was  then  and  there  engaged  raking 
and  gathering  oysters  on  his  own  account,  and  on  account 
and  for  the  benefit  of  his  employers.  The  avowries  contain 
the  further  allegation,  that  immediately  upon  the  seizure  the 
defendant  gave  information  thereof  to  two  justices  of  the 
peace  of  said  county,  who  appointed  a  day  and  place  for  the 
hearing  and  determination  of  the  matter.  The  allegation  of 
the  avowries  bring  the  defendant's  defence  in  terms  within 
the  act  entitled  "  An  act  for  the  preservation  of  clams  and 
oysters."  Nix.  Dig.,  p.  131,  §§  7,  9.*  The  plaintiffs  plead  to 
these  avowries,  that  the  vessel  when  seized  was  in  charge  of 
a  certain  person  who  was  engaged  in  gathering  oysters  in 
Maurice  river  cove,  within  the  waters  of  the  State  of  New 
Jersey,  which  oysters  were  planted  and  placed  there  by  a 
citizen  and  resident  of  the  State  of  New  Jersey,  who  sold 
them  to  a  purchaser  under  whom  the  plaintiffs  claimed  the 
right  to  take  them.  The  defendant  demurs  to  these  pleas, 
and  insists  that  the  act  applies  as  well  to  planted  as  natural 
oysters.  This  ground  of  demurrer  is  well  taken.  The  sev- 
enth section  of  the  act  which  authorizes  the  seizure  makes  no 
. _ ■ k 

*Itev.,  p.  136,  U  7,  9. 


522       COURT  OF  ERRORS  AND  APPEALS. 

Haney  and  Scattergood  v.  Compton. 

distinction  betweeu  natural  and  planted  oysters.  It  pro- 
JiibitSj  in  general  terras,  the  raking  or  gathering  of  oysters  in 
any  of  the  waters  of  this  state,  by  any  person  who  is  not,  at 
the  time,  and  has  not  been  for  six  months  then  next  preceding, 
an  actual  inhabitant  and  resident  of  this  state.  By  the  first 
section  of  the  act,  a  distinction  is  made  between  natural 
and  planted  oysters.  By  that  section,  it  very  clearly  appears 
that  the  legislature  intended  the  general  term  oysters  to 
include  the  planted  as  well  as  the  natural  oysters,  and  we 
have  no  right  to  restrict  the  seventh  section  within  limits 
more  confined,  than  it  is  quite  clear  the  law  maker  intended 

The  plaintiffs,  however,  insist  that  admitting  the  true  con- 
struction of  the  act  is  as  I  have  stated,  it  is  unconstitutional 
and  void,  because  it  is  a  regulation  of  commerce.  It  was 
doubtless  with  a  view  of  raising  this  question,  that  it  was 
averred  in  the  pleas  that  the  vessel  at  the  time  of  her  seizure 
had  a  coasting  license  from  the  government  of  the  United 
States.  But  it  cannot  with  any  propriety  be  said  that  a 
statute  which  simply  prohibits  non-residents  on  board  a  vessel 
from  subverting  the  soil  of  the  state  and  carrying  away  her 
property,  or  that  of  her  grantees,  leaving  such  vessel  free  to 
pass  and  repass,  and  go  whithersoever  those  in  charge  of  her 
desire,  is  a  regulation  of  commerce  with  foreign  nations,  or 
among  the  states.  It  is  a  law  for  the  protection  of  property — 
at  most  an  internal  police  regulation  entirely  within  the  com- 
petency of  the  state  to  adojit,  and  it  is  not  perceived  that  it 
can  by  possibility  interfere  with  commerce  in  the  sense  in 
which  that  word  is  used  in  the  federal  constitution. 

It  is  insisted  in  the  next  place  that  the  statute  is  a  viola- 
tion of  that  clause  of  the  constitution  of  the  United  States 
which  ordains  that  the  citizens  of  each  state  shall  be  entitled 
to  all  the  privileges  and  immunities  of  citizens  in  the  several 
states.  That  this  objection  to  the  act  is  unfounded,  will  be 
apparent,  I  think,  when  we  consider  what  is  the  right  of 
which  it  is  said  the  plaintiffs  are  deprived.  It  is  of  coming 
upon  the  lands  under  water  belonging  to  the  state  and  sub- 
verting the  soil  and  interfering  with  the  property  there  found. 
The  lands  are  those  of  the  state  and  she  may  retain  them  in 


MARCH  TERM,  1873.  523 

Haney  and  Scattergood  v.  Compton. 

her  own  actual  possession,  or  grant  or  lease  or  otherwise  part 
with  the  possession  of  them  on  such  terms  as  she  believes 
sound  policy  dictates.  She  hath  enacted  that  a  certain  class 
only  of  her  own  citizens  may  gather  oysters  in  the  public 
domain,  a*nd  restricted  the  privilege  to  them.  I  do  not  see 
that  the  rights  thus  granted  were  in  any  proper  sense  privi- 
leges and  immunities  of  the  citizens  of  this  state,  or  the  class 
of  them  to  which  the  state  gives  the  right.  To  so  hold  would 
require  the  state  to  grant  to  the  citizens  of  all  the  other  states 
the  right  to  use  the  property  of  the  state  on  the  same  terms 
and  conditions  she  is  willing  to  accord  such  right  to  her  own 
-citizens.  In  other  words,  the  doctrine  sought  to  be  main- 
tained is,  that  when  the  state  grants  to  a  class  of  her  own 
citizens  the  right  to  use  the  lands  of  the  state,  she  must  let  in 
the  citizens  of  all  the  other  states  on  the  same  terms,  and  that 
she  cannot  constitutionally  restrict  the'right  to  the  people  of 
this  state.  In  my  opinion,  such  a  doctrine  cannot  be  main- 
tained on  principle  or  authority.  Before  leaving  this  branch 
of  the  case  it  may  be  well  to  observe  that  the  act  makes  no 
discrimination,  except  as  to  the  rights  conferred  between  citi- 
zens of  this  state  and  of  another.  Both  alike  are  prohibited 
from  taking  oysters  by  tiie  use  of  any  vessel  on  which  is  em- 
ployed a  person  not  a  citizen  of  this  state. 

It  is  next  objected  that  the  act  is  unconstitutional,  because 
it  deprives  the  plaintiifs  of  their  property  without  due  process 
of  law.  The  construction  is,  that  inasmuch  as  the  vessel  may 
be  seized  without  process  first  issued,  and  without  notice  to 
the  owner  of  the  seizure,  he  may  be  deprived  of  his  property 
without  opportunity  to  make  defence.  It  must  be  recollected 
that  the  proceeding  is  in  rem  against  the  vessel  to  declare  her 
forfeited  because  of  a  violation  of  our  laws.  The  act  provides 
that  after  the  seizure,  information  shall  immediately  be  given 
to  two  justices  of  the  peace  of  the  county  where  such  seizure 
shall  have  been  made,  who  shall  meet  at  such  time  and  place 
as  they  shall  appoint,  and  hear  and  determine  the  matter.  It 
is  thus  shown  that  the  vessel  is  in  the  first  place  to  be  seized 
while  unlawfully  employed  within  our  jurisdiction,  and  in 
the  next  place  before  condemnation,  there  is  to  be  a  hearing 


521   COURT  OF  ERRORS  AND  APPEALS. 

Haney  and  Scattergood  v.  Compton. 

ami  determination  before  a  competent  tribunal.  The  proceed- 
ing is  to  be  upon  due  inquiry.  Provision  is  made  for  hearing 
the  parties,  and  judgment  is  to  be  given  only  after  such  hear- 
ing. There  is  to  be  a  regular  trial  after  due  ai^pointment  of 
time  and  place  for  the  same.  Any  arbitrary,  unjust,  illegal 
or  oppressive  proceeding  of  the  justices,  if  any  such  should 
happen,  may  be  corrected  by  the  Supreme  Court  by  virtue  of 
that  general  superintending  power  whioh  it  has  over  all  in- 
ferior jurisdictions.  It  appears  to  me  that  it  would  be  going 
too  far  to  hold  that  such  proceeding  is  void,  because  no  express 
provision  is  made  for  notice  to  the  defendant  of  the  seizure. 
Tiie  seizure  of  the  vessel  while  in  the  hands  of  the  owner  or 
his  employees  is  practicably  as  effective  notice  that  the  pro- 
ceeding has  been  initiated  as  could,  under  the  circumstances,  be 
given.  The  record  in  this  case  shows  that  when  the  vessel 
was  seized  she  was  in  the  possession  of  an  employee  or  agent 
of  the  plaintiffs.  Without  now  attempting  to  define  the  pre- 
cise meaning  of  those  much  discussed  phrases,  "due  process 
of  law,"  and  "  law  of  the  land,"  it  is  sufficient  to  say  that 
when  the  proceeding  is  in-rem  against  property  in  a  foreign 
jurisdiction,  found  in  the  possession  of  the  owner  or  his  agent, 
and  in  use  for  an  unlawful  purpose,  which  causes  a  forfeiture 
of  the  same,  the  seizure  thereof  without  judicial  process  first 
issued,  preparatory  to  regular  trial  and  condemnation,  is  not 
a  deprivation  of  property  without  due  process  of  law. 

It  is  only  necessary  to  say  that  the  plaintiffs'  objections 
that  the  act  is  repugnant  to  the  constitution  of  this  state, 
in  that  it  provides  for  a  criminal  prosecution  and  search 
and  seizure  of  property  without  warrant  and  trial  by  jury, 
are  not  deemed  tenable.  The  proceeding  is  not  a  criminal 
prosecution,  nor  is  it  an  invasion  of  the  security  guaranteed 
by  the  constitution  of  this  state,  to  the  people  in  their  homes, 
persons,  papers  and  effects  against  unreasonable  searches  and 
seizures,  nor  is  the  act  open  to  the  objection  that  it  violates 
the  right  of  trial  by  jury.  The  case  is  analogous  to  that  of 
McGear  et  al,  v.  Woodruff,  4  Vroom  213,  and  must  be  con- 
trolled by  the  principles  in  respect  to  the  right  of  trial  by 


MAECH  TERM,  1873.  525 

Haney  and  Scattergood  v.  Compton. 

jury,  adjudicated  in  that  case.  In  considering  the  main 
questions  in  this  case,  I  have  not  referred  to  the  adjudged 
cases  which  bear  upon  the  points  discussed,  nor  was  it  neces- 
sary. The  elaborate  brief  of  the  counsel  of  defendant  refers 
to  all  the  principal  authorities,  while  the  subject  is  exhaust- 
ively examined  in  the  opinion  of  the  court  below,  so  far  as  the 
points  there  raised  are  concerned,  and  in  the  case  of  Bevans 
V.  Compton  et  al.,  in  the  Circuit  Court  of  the  U.  S.  for  this 
district.  Judge  Nixon,  in  a  clear  and  well  considered  opinion, 
a  copy  of  which  was  furnished  to  the  court  on  the  argument 
of  this  case,  taking  substantially  the  same  view  of  the  main 
questions  involved  as  is  above  indicated. 

The  result  is,  that  no  error  having  been  shown  in  the  record 
or  proceedings  below,  the  judgment  must  be  affirmed,  with 
costs. 

For  affirmance — The  Chancelloe,  Chief  Justice, 
Bedle,  Daleimple,  Depue,  Scuddee,  Woodhull,  Clem- 
ent, DODD.     9. 

For  reversal — None. 
Cited  in  Day  v.  Compton,  8  Vr.  514 ;  WeUer  v.  Snover,  13  Vr.  341^ 

Vol.  vn.  33 


CASES  AT  LAW 


DETERMINED   IN   THE 


COURT  OF  ERRORS  AND  APPEALS 

OF   THE 

STATE  OF   NEW  JERSEY, 

AT  JUNE  TERM,  1873. 


HENRY  B.  KEMBLE  ET  AL.,  ADMINISTRATORS,  &c.,  OP 
CHARLES  KEMBLE,  DECEASED,  PLAINTIFFS  IN  ERROR, 
rv.  PHEBE  HARRIS,  DEFENDANT  IN  ERROR. 

1.  The  words,  "  writ  of  execution,"  in  the  twenty-second  section  of  the 
act  concerning  slieriffs,  apply  to  writs  of  fieri  facias  as  well  as  to  writs 
of  capias  ad  satisfaciendum. 

2.  Where  adverse  claim  is  set  up  to  property  levied  on  by  a  sheriff,  and 
the  plaintiff's  attorney  and  the  sheriff  are  in  correspondence  as  to  the 
action  to  be  taken  in  the  premises,  the  latter  asking  and  the  former 
promising  instructions,  the  sheriff  is  not  liable  to  amercement  for  not 
proceeding  to  sale  until  he  shall  have  disobeyed  or  disregarded  posi- 
tive, reasonable  and  lawful  directions  to  that  end. 

3.  A  levy  made  after  the  return  day  of  a  writ  of  fieri  facias,  is  a  nullity. 


In  error  to  the  Supreme  Court. 

On  the  15th  day  of  February,  1870,  a  writ  of  fieri  facias, 
returnable  on  the  fourth  Tuesday  of  that  month,  was  issued  out 
of  the  Supreme  Court  at  the  suit  of  Phebe  Harris,  against 
Alexander  Kirkpatrick,  directed  to  the  sheriff  of  Burlington. 

It  was  delivered  to  the  sheriff  on  the  22d  day  of  the  same 

526 


JUNE  TERM,  1873.  527 

Kemble  et  al.  v.  Harris. 

month,  the  day  on  which  it  was  returnable.  On  the  24th  he 
made  a  levy  under  it  on  certain  personal  property  in  the  pos- 
session of  the  defendant,  and  on  the  28th,  apprised  the  plain- 
tiff's attorney  of  the  levy,  at  the  same  time  informing  him 
that  the  defendant's  wife,  alleging  that  the  goods  were  not 
the  property  of  her  husband,  had  protested  against  it,  and 
that  the  defendant,  in  whose  absence  from  home  the  levy  had 
been  made,  had,  on  his  return,  also  denied  all  ownership  of 
the  goods.  The  sheriff  suggesting  that  proceedings  under  the 
levy,  with  a  view  to  sale,  would  probably  result  in  a  claim  of 
property  and  a  trial  of  title,  asked  for  instructions. 

On  the  2d  of  March  following,  the  attorney,  in  reply, 
■directed  the  sheriff  to  levy  on  everything  the  defendant  had ; 
to  make  a  careful  and  exact  appraisement ;  to  permit  the  de- 
fendant to  make  the  selection  he  was  entitled  to  by  law; 
obtain  from  his  wife  a  statement  of  her  claim  of  property,  and 
send  to  the  attorney  a  copy  of  the  appraisement  and  statement 
of  selection,  the  attorney  promising,  that  on  receipt  thereof,  he 
would  give  the  sheriff  further  instructions.  On  the  24th  of 
May  following,  the  sheriff  having  been  urged  by  the  attorney 
to  proceed,  apologized  for  his  delay,  excusing  himself  for  hav- 
ing made  no  appraisement,  on  the  ground  that  he  had  become 
satisfied  that  the  goods  levied  on  were  not  the  defendant's 
property;  and  expressing  his  conviction  that  nothing  could  be 
made  on  the  execution,  declared  his  readiness  to  make  the  ap- 
praisement, if  insisted  on  under  the  circumstances,  and  re- 
quested immediate  instructions  on  the  subject. 

On  the  26th  of  May  the  attorney  wrote  to  the  sheriff  re- 
questing that  a  copy  of  the  execution  and  of  its  endorsements, 
as  well  his  own  as  those  of  the  sheriff,  and  a  copy  of  the  in- 
ventory be  sent  to  him  at  once,  but  neither  gave  any  further 
instructions  nor  promised  any. 

To  this  the  sheriff  replied,  on  the  28th  day  of  May,  stating 
his  inability  to  comply  with  the  request  it  conveyed,  because 
he  had  returned  the  writ.  No  further  correspondence  took 
place  between  the  parties  on  the  subject,  except  that  on  the 


528   COURT  OF  ERRORS  AND  APPEALS. 

Kemble  et  al.  v.  Harris. 

7th  of  June  following,  the  attorney  wrote  to  the  sheriff  sug- 
gesting a  suspicion  of"  bad  faith,  and  expressing  an  intention 
to  proceed  to  amerce  him.  Motion  was  made  for  aij  amerce- 
ment in  the  Supreme  Court  at  the  term  of  February,  1872, 
and  an  amercement  ordered.  See  Harris  v.  Kirkpatrick,  6 
Vroom  392. 

For  the  plaintiffs  in  error,  James  Wilson, 

For  the  defendant  in  error,  F.  F.  Westcott. 

The  opinion  of  the  court  was  delivered  by 

The  Chancellor.  On  the  argument  in  this  court  It  was 
urged  that  the  notice  of  amercement  was  insufficient,  because 
it  stated  the  grounds  of  the  application  to  be  that  the  sheriff 
had  "  neglected  and  refused  to  execute  the  writ  of  execution,, 
and  that  he  had  neglected  to  file  a  just  and  true  inventory  of 
the  goods  and  chattels,  lands  and  tenements  levied  on  and 
taken  in  execution"  under  the  writ,  which  was  sl fieH facias, 
while  judgment  of  amercement  was  asked  solely  on  the  ground 
that  the  sheriff  had  not  proceeded  to  sale  of  the  property  levied 
on.  It  was  insisted  that  the  words  "  writ  of  execution,"  in  the 
twenty-second  section  of  the  act  concerning  sheriffs,  {Nix.  Dig. 
891,)*  under  which  the  proceedings  for  amercement  were  taken, 
have  reference  to  a  writ  of  capias  ad  satisfaciendum,  and  not 
to  a  writ  o^  fieri  facias,  and  that  if  that  section  authorizes  an 
amercement  for  neglecting  or  refusing  to  execute  o.  fieri  facias  ^ 
this  case  is  not  within  it,  because  a  writ  o^  fieri  facias  is  exe- 
cuted by  levy  and  return.  In  8cott  v.  Dow,  2  Green  350,  it 
was  held  that  the  word  "execute,"  used  in  connection  M'ith 
these  words  in  the  section  referred  to,  is  to  be  taken  in  the 
sense  o^  fulfil  or  complete,  and  that  if  a  sheriff,  having  levied 
under  a  fieri  facias,  unlawfully  neglects  or  refuses  to  proceed 
to  a  sale,  he  fails  to  fulfil  or  complete,  and  therefore  to  exe- 
cute, the  writ.     Stryker  v.  Merseles,  4  Zah.  544. 

In    Waterman  v.  Merrill,  4  Vroom  379,  the  court  say  on 
this  subject,  construing  the  word  with  reference  to  a  fieri 

*Bev.,p.n02,^22. 


JUNE  TERM,  1873.  529 

Kemble  et  al.  v.  Harris. 

facias :  "  To  execute  the  writ  in  the  sense  of  the  act  is  to  do 
all  that  the  writ  commands  to  be  done."  These  decisions  are 
according  to  the  plain  signification  of  the  term  as  it  stands  in 
the  statute,  and  it  is  evident  that  the  words  "  writ  of  execu- 
tion "  were  intended  to  embrace  writs  of  fieri  facias,  as  well 
as  writs  of  capias  ad  satisfaciendum. 

In  the  case  before  us,  the  sheriff  levied  on  the  goods  in  the 
possession  of  tiie  defendant,  but  proceeded  no  farther  towards 
a  sale.  While  it  appears  that  adverse  claim  was  made,  it  does 
not  clearly  appear  that  it  was  in  writing.  If  it  was,  no  notice 
was  given  under  it  by  the  claimant  to  the  plaintiff. 

The  rights  and  responsibilities  of  the  plaintiff  and  the 
sheriff,  therefore,  remain  as  at  common  law. 

A  few  days  after  making  the  levy  the  sheriff  apprised  the 
plaintiffs'  attorney  that  the  defendant  disclaimed  ownevship  of 
the  property  ;  that  claim  was  made  upon  the  property  by  the 
•defendant's  wife,  and  that  in  all  probability  proceedings  with 
a  view  to  sale  would  eventuate  in  a  formal  claim  to  all  the 
goods  and  a  trial  of  title. 

In  reply  to  his  request  for  instructions  then  made,  the 
attorney  directed  him  to  make  a  minute  levy,  a  careful  and 
exact  appraisement,  to  allow  the  defendant  his  selection  under 
the  statute,  to  get  from  the  defendant's  wife  a  statement  of  her 
claim,  and  to  send  him  a  copy  of  the  appraisement,  selection 
and  statement.  He  promised  at  the  same  time  further  instruc- 
tions after  these  directions  should  have  been  complied  with. 
So  matters  stood  until  the  24th  of  May,  when  the  sheriff  wrote 
to  the  attorney  excusing  himself  for  not  having  made  the 
appraisement,  and  again  declaring  his  willingness  to  proceed 
if  required,  renewed  his  request  for  instructions. 

To  this  the  attorney  replied  by  asking  for  copies,  but 
neither  giving  nor  promising  any  further  instructions.  The 
plaintiff  insists  that  the  sheriff,  after  receipt  of  this  last  com- 
munication, returned  the  writ  without  further  effort  to  make 
the  money.     Conceding  this,  there  is  no  ground  for  amerce- 


530       COURT  OF  ERRORS  AND  APPEALS. 

Kemble  et  al.  v.  Harris. 

ment.  The  sheriff  had  a  right  to  return  the  writ  when  he 
did ;  the  return  day  was  long  passed.  The  attorney  had  not 
directed  the  sheriff  to  proceed  to  sale. 

From  the  correspondence,  the  latter  had  reason  to  conclude 
that  he  was  to  be  guided  and  governed  by  the  directions  he 
should  receive  from  the  former,  and  that  that  was  to  be  the 
limit  of  his  responsibility.  Under  the  circumstances,  he  could 
not  have  expected  to  be  held  liable  for  not  proceeding  to  a  sale 
until  he  had  disobeyed  reasonable  orders  to  that  end. 

Where,  as  in  the  case  before  us,  an  adverse  claim  is  set  up 
to  goods  levied  on,  and  the  sheriff  and  plaintiff's  attorney  are 
in  correspondence  as  to  the  action  to  be  taken  in  the  premises, 
the  former  asking  and  the  latter  promising  instructions,  the 
sheriff  is  not  liable  to  amercement  until  he  shall  have  dis- 
obeyed positive,  reasonable,  lawful  directions. 

The  case,  in  this  aspect,  falls  within  the  principle  of  Fata-- 
son  Bank  v.  Hamilton,  X  Green  159  ;  Leroy  v.  Blauvelt,  1 
Gt-een  341 ;  Scott  v.  Doiv,  2  Green  350 ;  Stryker  v.  Merseles,  4 
Zab.  544;  and  Waterman  v.  Merrill,  4  Vroom  379. 

In  Scott  V.  Dow,  the  court  say  :  "  A  plaintiff  ought  not  first 
to  disarm  a  sheriff,  and  then  hold  him  liable  for  not  executing 
a  writ." 

In  the  present  case,  however,  no  reasonable  lawful  orders 
were  possible,  owing  to  the  character  of  the  levy. 

The  writ  was  returnable  on  the  very  day  on  which  it  was 
delivered  to  the  sheriff. 

The  levy  was  made  two  days  afterv.ards.  It  was  therefore 
a  nutlity,  and  the  sheriff  was  liable  to  be  treated  as  a  trespasser 
for  making  it.  He  could  not  lawfully  have  sold  under  it.  He 
cannot  be  amerced  for  not  proceeding  to  sale  under  a  void 
levy. 

Nor  is  he,  under  the  circumstances,  estopped  from  setting 
up  this  defence.  He  communicated  to  the  plaintiff's  attorney 
the  fact  that  the  writ  had  come  to  his  hands  on  its  return 
day,  and  that  he  had  levied  under  it,  stating  the  date  of  the 
levy.     Both  must  have  known  that  the  levy  was  a  nullity^ 


JUNE  TERM,  1873.  531 

Pennsylvania  E.  R.  Co.  v.  Matthews. 

and  then  subsequent  correspondence  must  be  viewed  in  th« 
light  of  that  fact. 

The  judgment  of  the  Supreme  Court  must  be  reversed. 

For  reversal — The  Chancellor,  Chief  Justice,  De- 
PUE,  Van  Syckel,  Woodhull,  Dodd,  Lathrop,  Lilly, 
Wales.     9. 

For  affirmance — None. 


THE  PENNSYLVANIA  EAILROAD  COMPANY,  PLAINTIFFS 
IN  EREOE,  V.  CHAELES  B.  MATTHEWS,  DEFENDANT  IN 
EEEOE. 

1.  A  non-suit  is  proper  when  from  the  plaintiff's  own  showing,  it  dearly 
appears  that  he  contributed  by  his  own  carelessness  to  the  happening 
of  the  accident  from  which  he  received  damages. 

2.  As  a  general  rule,  a  railroad  company  is  not  bound  to  keep  a  flagman 
at  the  points  where  its  road  intersects  public  highways. 

3.  But  this  obligation  may  become  due  by  reason  of  such  company  con- 
structing its  road  so  as  to  make  the  crossing  or  use  of  such  highways 
unnecessarily  dangerous. 


On  error  to  the  Supreme  Court. 

This  case  was  tried  before  Justice  Depue  and  a  jury  at  the 
January  Term,  1873,  of  the  Essex  Circuit.  The  horses  and 
wagon  of  the  plaintiff  were  run  over  by  the  train  of  cars  of 
the  defendant,  and  the  suit  was  brought  for  damages  thus 
occasioned.  A  verdict  having  been  rendered  for  the  plaintiff, 
and  judgment  entered  thereon,  a  writ  or  error  was  brought  to 
this  court. 

For  the  plaintiffs  in  error,  I.  W.  Scudder. 

For  the  defendant  in  error,  R.  W.  Parker  and  C.  Parher, 


532   COURT  OF  ERRORS  AND  APPEALS. 

Pennsylvania  R.  R.  Co.  v.  Matthews. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  A  railroad  track  is  a  place  of 
danger,  and  any  one  who  incautiously  places  himself  upon  it, 
and  sustains  damage  in  consequence  of  such  carelessness,  is 
entirely  remediless.  The  law  requires  of  all  persons  approach- 
ing sucli  a  point  of  peril,  the  exercise  of  a  reasonable  caution, 
and  if  this  duty  is  neglected,  and  an  accident  thereby  occurs, 
it  says  to  those  who  are  thus  in  default,  that  they  must  bear 
the  ill  which  is  the  product,  in  whole  or  in  part,  of  their  own 
folly.  Tliis  rule  is  founded  deep  in  a  wise  public  policy,  for 
this  species  of  rashness  jeopards  not  only  the  individual  guilty 
of  it,  but  the  peril  is  extended  to  all  persons  who  at  the  point 
of  time  may  chance  to  be  in  the  cars  moving  over  the  track. 
The  legal  provision  operates,  at  once,  as  a  punishment  of  the 
guilty  and  a  protection  to  the  innocent.  Tiiis  doctrine  is 
established  by  a  series  of  decisions  in  this  state,  and  is  familiar 
law  both  in  the  English  and  American  courts. 

It  is  one  of  the  unavoidable  results  of  this  doctrine  that 
if  in  an  action  involving  this  issue,  it  appears  from  the  plain- 
tiff's own  case  that  he  has  in  part  contributed,  by  his  want  of 
ordinary  caution,  to  the  production  of  the  damage  of  which  he 
complains,  he  will  be  subjected  to  a  non-suit.  And  this  is 
the  ground  upon  which  the  first  objection  to  the  present  judg- 
ment has  been  rested.  But  I  do  not  think  the  facts  in  proof 
sustain  this  contention. 

It  is  not  necessary  to  treat  those  facts  in  detail.  It  is  suffi- 
cient for  all  useful  purposes  to  say,  that  the  evidence  on  this 
subject  is  open  to  fair  debate,  and  leaves  the  mind  in  a  state 
of  some  doubt  on  this  question,  whether  the  driver  of  the 
horses  which  were  destroyed,  exercised  or  not  that  degree  of 
care  which  his  legal  duty  exacted.  This  being  the  case,  the 
judge  would  not  have  been  justified  in  taking  this  question 
from  the  jury.  Such  a  course  is  proper  only  when  the  absence 
of  caution  is  apparent,  and  is  in  reason,  indisputable. 

This  exception  cannot  be  sustained. 

The  only  other  objection  which  was  pressed  upon  the  argu- 


JUNE  TERM,  1873.  533 

Pennsylvania  R.  R.  Co.  v.  Matthews. 

Tnent,  was  the  one  relating  to  the  alleged  duty  of  the  defendant 
to  keep  a  flagman  at  the  point  where  the  collision  occurred. 

The  place  in  question  was  one  of  evident  danger.  The 
public  road  crossed  the  railroad  track  a  short  distance  from  a 
deep  cut  which  entirely  shut  out  from  view  the  engine  and 
cars.  Just  before  its  intersection  with  the  road  the  track 
took  a  sharp  curve.  A  person  standing  at  the  point  of  inter- 
section could  not  see  along  the  track  into  the  cut.  There 
M'ei'e  two  small  buildings  belonging  to  the  defendants  between 
the  mouth  of  the  cut  and  the  road,  so  placed  as,  in  some 
measure,  to  intercept  the  sight  of  a  person  who  had  approached 
dose  to  the  place  of  intersection.  It  appeared  in  the  testi- 
mony that  the  train  of  the  defendants,  on  the  occasion  in 
question,  was  moving  with  considerable  speed.  It  was  further 
shown  that  a  flagman  was  usually  kept  at  that  place,  but  was 
casually  absent  at  the  time  of  the  accident. 

These  being  the  conditions  of  the  case,  the  judge  charged, 
with  respect  to  the  present  question,  as  follows,  viz. :  "  The 
defendants  owed  a  duty  to  the  traveling  public,  which  may 
be  summed  up  in  this  one  sentence.  They  were  bound  to 
use  all  such  precautions  as  are  reasonably  necessary  to  give 
to  persons  crossing  their  track  on  the  highway,  warning  of 
the  approach  of  tlieir  trains,  in  order  to  enable  persons  cross- 
ing over  the  track  by  the  highway,  to  avoid  collision.  In 
that  proposition  is  embraced  all  the  law  of  the  case.  That 
the  company  were  bound  to  give  reasonable  warning,  either 
by  signals  or  by  a  flagman,  to  persons  traveling  the  highway, 
to  enable  them  to  avoid  collision  by  the  company's  trains. 
There  is  no  general  rule  of  law  by  which  a  railroad  com- 
pany is  bound  to  place  a  flagman  at  a  particular  crossing,  and 
it  is  only  where,  by  the  configuration  of  the  country,  that  is, 
the  situation  of  the  adjoining  land  with  respect  to  the  railroad, 
or  where  the  travel  is  so  constant  and  frequent  over  their 
railroad  that  the  use  of  ordinary  signals  would  fail  to  give 
reasonable  notice  to  the  public  having  occasion  to  cross  the 
track,  that  the  company  is  bound  to  place  a  flagman  at  the 
crossing." 


534       (X)URT  OF  ERRORS  AND  APPEALS. 

Pennsylvania  K.  R.  Co.  v.  Matthews. 

The  question  is,  not  whether  this  enunciation  of  legal  prin- 
ciples is,  in  the  abstract,  correct  in  all  its  propositions,  but 
whether  it  is  so  with  respect  to  the  precise  legal  principle  in- 
volved in  the  case  then  in  the  course  of  trial.  In  this  narrow 
aspect,  the  rule  la'id  doM'c  was  this,  that  if  that  particular 
place  was  so  peculiarly  dangerous,  that  prudent  persons  could 
not  use  the  public  road  in  safety,  unless  the  company  em- 
ployed a  flagman  or  other  extraordinary  means  to  signal  the 
approach  of  their  trains,  that  then,  in  such  event,  it  was  in- 
cumbent on  them  to  employ  such  extraordinary  means.  And 
this  proposition  seems  to  me  to  be,  in  its  application  to  the 
case  then  trying,  in  all  respects  correct.  It  is,  in  fact,  nothing 
more  than  saying  that  a  railroad  company  cannot,  by  the  mode 
in  which  they  choose  to  construct  their  road  and  its  appendant 
buildings,  render  a  public  road  impassable.  I  quite  agree  to- 
the  remark  made  by  one  of  the  English  judges,  that  the  ques- 
tion whether  flagmen  are  to  be  required  to  be  kept  at  every 
cross-road,  is  not  to  be  left  to  the  caprice  of  juries.  The 
statute  which  confers  upon  a  railroad  the  right  to  make  a 
track  and  work  it,  by  necessary  implication,  subjects  the 
public  to  the  ordinary  risks  attendant  on  the  exercise  of  the 
privileges  thus  granted.  Under  usual  circumstances,  in  the 
open  country,  they  can  run  as  many  trains,  and  at  as  great  a 
rate  of  speed,  as  are  consistent  with  the  safety  of  their  pas- 
sengers. They  are  not  called  on  to  keep  flagmen,  under  ordi- 
dinary  circumstances,  at  cross-roads,  nor  to  give  any  other 
notice  of  the  approach  of  their  trains  than  those  signals  that 
are  prescribed  by  statute.  If  greater  safeguards  are  requisite 
for  the  safety  of  the  community,  and  those  public  agents  are 
to  be  put  under  greater  restrictions  in  the  exercise  of  their 
franchises,  such  contrivances  must  proceed  from  the  legislative, 
and  not  from  the  judicial  power. 

But  while  I  thus  say  that  these  additional  burthens  cannot 
be  imposed  by  the  courts  upon  these  companies,  I  also  say, 
at  the  same  time,  and  with  quite  as  much  emphasis,  that  the 
companies  may,  by  their  own  conduct,  impose  such  burthen* 
on  themselves.     If  one  of  them  chooses  to  build  its   track 


JUNE  TERM,  1873.  535- 

Pennsylv-ania  K.  R.  Co.  v.  Matthews. 

in  such  a  mode  as  to  unnecessarily  make  the  use  of  a  public 
road  which  it  crosses,  greatly  dangerous,  I  think  such  com- 
pany, by  its  own  action,  must  be  held  to  have  assumed  the 
obligation  of  compeasating  the  public  for  the  increased  danger, 
by  the  use  of  additional  safeguards.  The  reasonable  and 
indispensable  implication  is,  that  the  railway  is  to  be  con- 
structed so  as  not  unnecessarily  to  interfere  with  the  safe  use 
of  the  public  roads  ;  and  if  a  railroad,  for  its  own  convenience, 
curves  its  track  as  it  leaves  a  deep  cut,  within  a  few  feet  of  a 
highway,  and  also  sees  fit  to  put  up  buildings  close  along 
such  track,  and  by  these  means,  or  either  of  them,  heighten- 
ing the  danger  in  the  use  of  such  highway,  it  seems  to  me 
very  clear,  that  such  company  must  be  held  to  have  taken 
upon  itself  the  duty  of  averting  such  danger,  by  the  employ- 
ment of  every  reasonable  precaution  within  its  power.  On 
such  occasions  as  this,  or  whenever  the  situatioa  is  embraced 
within  the  principle  stated,  the  presence  of  a  flagman,  or 
5ome  equivalent  safeguard  can  be  demanded  of  the  company. 
The  rule  is,  as  I  understand  it,  that  when  the  company  has 
;reated  extra  danger,  it  is  bound  to  use  extra  precautions, 
[f,  the  track  is  put  in  a  position  where  the  trains,  when 
.'lose  to  their  transit  over  a  public  street  or  road,  cannot  be 
seen,  this  is  an  extra  danger  which  calls  for  more  than  the 
ordinary  cautionary  signals.  I  can  see  no  difficulty  in  apply- 
ing this  rule;  it  will,  obviously,  be  very  much  under  the 
control  of  the  court. 

The  principle  thus  expressed  is  the  one  wdiich,  I  think, 
now  prevails  in  the  English  courts.  It  was  enforced,  though 
witiiout  any  reference  to  the  theoretical  grounds  on  which 
the  judgment  was  rendered,  in  the  case  of  BUbee  v.  London  & 
Brighton  R  R.  Co.,  18  C.  B.  {N.  S.).5S4.  But  this  decision 
was  considered,  and  the  principle  involved  in  it  admirably 
explained  in  the  recent  and  important  case  of  Cliff  v.  Mid- 
land Raihoay  Co.,  L.  R.,  5  Q.  B.  258.  In  this  latter 
autiiority  all  general  liability  in  railway  companies  to  pro- 
vide gate-keepers  or  flagmen  is  entirely  repudiated ;  but,  at 
the  same  time,  their  responsibility  for  not  providing  against 


536       COURT  OF  ERRORS  AND  APPEALS. 

Pennsylvania  R.  R.  Co.  v.  Matthews. 

unusual  risks,  of  tlieir   own   creation,  is  just    as  decidedly- 
maintained. 

With  respect  to  the  case  of  Beisiegel  v.  The  New  York 
Central,  40  N.  Y.  9,  which  was  much  relied  on,  upon  the 
argument,  by  the  couasel  of  the  defendant,  I  have  to  remark, 
that  on  a  careful  examination,  I  do  not  find  that  it  is  at  all 
hostile  to  the  doctrine  already  declared  by  me.  The  decision 
in  that  case  is  to  the  effect  that  it  cannot  be  left  to  a  jury  to 
find,  from  the  mere  fact  that  a  street  is  in  a  populous  town 
and  is  much  used,  whether  it  is  incumbent  on  a  railway  com- 
pany, whose  track  intersects  such  street,  to  station  a  flagman 
at  such  point.  This  would  clearly  be  to  leave  the  whole  mat- 
ter to  a  jury,  without  anything  to  control  or  guide  their 
judgments.  Such  a  course  of  proceedings  would  not  be  justi- 
fied by  the  rule,  as  above  defined  by  me.  The  charge  of  the 
judge  in  the  present  case  had  no  such  scope  as  this;  the  situ- 
ation of  danger,  which  it  was  alleged,  was  extraordinary,  had 
admittedly  been  occasioned  by  the  defendant,  and  it  was  in 
view  of  such  a  state  of  things  that  the  instruction  was  given 
to  the  jury  that  if,  under  such  circumstances,  they  thought 
a  reasonable  protection  had  not  been  afforded  to  "  the  travel- 
ing public,"  by  the  usual  signals,  the  company  were  respon- 
sible for  the  failure  to  use  other  precautions.  In  the  reported 
case  the  danger  to  be  provided  against  was  the  ordinary  dan- 
ger consequent  on  the  use  of  the  road  under  ordinary  circum- 
stances; in  the  case  at  the  circuit  the  use  had  been  under  ex- 
traordinary circumstances;  hence  the  difference  of  the  rule 
applicable  to  each  of  the  cases.  That  the  New  York  decision 
did  not  reach  beyond  the  limit  thus  defined  is  manifest  from 
the  more  recent  case,  before  the  same  court,  of  Richardson  v. 
New  York  Central  R.  Co.,  reported  in  45  N  Y.  846.  The 
facts  giving  rise  to  this  latter  judgment  were  very  similar  to 
those  with  which  we  are  now  dealing.  The  report  states  that 
the  track  approached  the  highway  through  an  excavation 
deep  enough  to  cut  off  all  view  of  approaching  trains,  and 
extending  to  a  point  within  a  few  rods  of  the  crossing.  The 
defendant  had  erected  a  watch-house,  so  situated  as  partially 
to  obstruct  the  view  of  the  track.     The  court  sustained  a 


JUNE  TERM,  1873.  537 

Columbia  Delaware  Bridge  Co.  v.  Geisse. 

recovery  on  the  ground  that,  under  such  circumstances,  the 
defendant  was  obliged  by  law  to  give  notice  of  the  coming  of 
its  trains  in  some  other  manner  than  by  the  ordinary  signals, 
that  were  required  by  the  statute.  The  reason  of  the  judg- 
ment being  the  extraordinarily  dangerous  position  of  the 
railroad  with  respect  to  the  public  highway.  And  the 
opinion  read  in  the  case  declares  that  the  same  principle  was 
substantially  held  in  the  decision  already  quoted,  of  Beisiegel 
V.  New  York  Central. 

The  judgment  should  be  affirmed. 

For  affirmance — The  Chancelloe,  Chief  Justice,  Be- 
DLE,  Dalrimple,  Scudder,  Woodhull.  Clement.  Dodd, 
Green,  Lathrop,  Lilly.     11 

For  reversal — None 

Cited  in  Del.,  Lack.  &  W.  R.  E.  Co.  v.  ^'o^ey,  9  Vr.  525 ;  Bonnell  v. 
Dd.,  Lack.  &  W.  E.  B.  Co.,  10  Vr.  189 ;  Del.,  Lack.  &  W.  B.  B.  Co.  v.  East 
Orange,  12  Vr.  127;  Penna.  B.  B.  Co.  v.  Bighter,  13  Vr.  180;  Klein  v. 
Jewett,  11  C.  E.  Gr.  474. 


THE  COLUMBIA  DELAWARE  BRIDGE  COMPANY,  PLAIN- 
TIFFS IN  ERROR,  V.  CHRISTIANNA  GEISSE  ET  AL.,  DE- 
FENDANTS IN  ERROR. 

Three  freeholders  appointed  under  an  act  passed  March  7th,  1839,  to  ap- 
praise the  damages  sustained  by  the  defendants,  the  owners  of  a  ferry, 
by  the  erection  of  the  plaintiffs'  bridge,  were  sworn  to  appraise  the 
damages  sustained  by  the  erection  and  use  of  the  bridge — Held,  that 
the  affidavit  was  good,  and  not  at  variance  with  the  true  sense  of  the 
act — Held,  further,  that  the  freeholders  were  not  restricted  by  the  act 
to  such  information  as  they  could  obtain  from  their  own  view  and 
examination  of  the  property  to  be  appraised,  but  were  left  free  to 
determine  for  themselves,  not  only  what  information  they  would  need, 
but  how  and  from  what  source  they  would  obtain  it — the  rules  which 
govern  the  admissibility  and  effect  of  evidence  in  courts  having  no- 
application  to  such  proceedings. 


Error  to  the  Supreme  Court. 


538       COURT  OF  ERRORS  AND  APPEALS. 

Columbia  Delaware  Bridge  Co.  v.  Geisse. 

For  the  facts  in  this  case  and  the  proceedings  and  opinion 
of  the  Supreme  Court,  see  6  Vroom  474. 

To  reverse  the  judgment  founded  on  this  opinion  this  writ 
of  error  was  brought. 

For  plaintiffs  in  error,  /.  G.  Shipman. 

For  defendants,  J.  Vanatta. 

The  opinion  of  the  court  was  delivered  by 

WooDHULL,  J.  This  writ  of  error  brings  up  a  judgment 
of  the  Supreme  Court,  dismissing  a  writ  of  certiorari  by 
which  the  plaintiffs  in  error  sought  to  set  aside  the  proceed- 
ings of  three  freeholders,  appointed  under  an  act  passed 
March  7th,  1839,  to  appraise  the  damages  which  the  defend- 
ants had  sustained  by  the  erection  of  the  plaintiffs'  bridge. 

It  is  insisted  on  the  part  of  the  plaintiffs  in  error,  that  the 
court  below  erred  in  two  particulars;  first,  in  holding  the  aji- 
praisers'  oath  to  be  legal  and  sufficient;  secondly,  in  holding 
that,  to  aid  them  in  making  their  appraisement,  they  might 
lawfully  receive  from  the  defendants  and  examine  certain  toll 
'books  and  ferry  leases. 

1.  The  chief  objection  urged  here  against  the  oath  ap- 
peared to  be  this :  that  while  the  act  authorized  merely  an 
appraisement  of  the  damages  sustained  by  the  erection  of  the 
bridge,  the  oath  required  an  a})praisement  of  the  damages 
sustained  by  the  erection  and  use  of  the  bridge.  It  is  urged 
that  the  language  of  the  affidavit  is  a  departure  from  that  of 
the  act,  and  involves  a  misconstruction  of  it.  But  there  is 
nothing  in  this  objection.  The  affidavit  is  not  at  variance 
with  the  true  sense  of  the  act  as  settled  by  this  court  in  a 
case  between  these  same  parties,  decided  at  the  June  Term, 
1871.  It  was  sworn  to  shortly  after,  and  was  probably 
drawn  with  reference  to  that  decision.  At  all  events,  it  does, 
in  fact,  conform,  in  all  material  respects,  to  the  construction 
of  the  act  in  question,  sanctioned  by  the  court  in  that  case. 
Col.  Del.  Bridge  Co.  v.  Geisse  et  al.,  6  Vroom  558. 


JUNE  TERM,  1873.  539 

Columbia  Delaware  Bridge  Co.  v.  Geisse. 

2.  The  only  remaining  question  is,  whether  the  freeholders 
"vvere  at  liberty  to  refer,  for  any  purpose,  to  the  leases  and 
toll-books  laid  before  them  by  the  defendants. 

It  was  argued  on  the  part  of  the  plaintiff's,  that  in  ascer- 
taining the  damages,  the  freeholders  were  restricted  to  such 
information  as  they  could  obtain  from  their  own  view  and 
examination  of  the  property  to  be  appraised.  But  this  propo- 
sition is  neither  supported  by  the  language,  nor  consistent 
with  the  purposes  of  the  act. 

It  is  true  that  where  lands,  or  other  corporeal  things  are 
required  to  be  taken  for  the  purposes  of  this  act,  the  freehold- 
ers are  to  view  and  examine  them.  But  there  is  nothing  in 
the  act  to  indicate  that  the  legislature,  even  with  respect  to  such 
property,  intended  that  the  freeholders  should  proceed  solely 
upon  such  view  and  examination.  And  in  the  absence  of 
such  restrictive  words  or  other  clear  induction  to  the  contrary, 
the  only  reasonable  conclusion,  as  it  seems  to  me,  is  that  the 
freeholders  were  left  by  this  act,  and  were  intended  to  be  left 
entirely  free  to  determine  for  themselves,  not  only  what  in- 
formation they  would  need,  but  to  obtain  it  from  any  source 
and  in  any  way  which  would  be  open  to  a  private  citizen 
seeking  similar  information  for  the  purposes  of  his  own  busi- 
ness. The  artificial  rules  which  govern  the  admissibility  and 
effect  of  evidence  in  courts  of  justice  have  no  application  to 
proceedings  of  this  character. 

The  freeholders  might  lawfully,  as  they  did,  without  ob- 
jection from  either  side,  hear  the  oral  statements  and  argu- 
ments of  the  parties,  or  those  who  represented  them.  They 
had  a  perfect  right  to  receive  and  examine,  as  they  did,  the 
leases  and  ferry  toll-books.  And  there  was  not,  in  my  judg- 
ment, any  legal  impediment  to  prevent  their  receiving  the 
same  statements  and  documents,  verified  by  affidavit,  or  by 
the  testimony  of  witnesses  sworn  in  their  presence. 

In  this  direction,  at  least,  if  not  fully  to  this  effect,  are  the 
decisions  in  the  Supreme  Court,  and  in  this  court,  in  the  case 
of  Coster  v.  N.  J.  R  Co.,  3  Zab.  227 ;  4  Zab.  730. 

The  result  is,  that  as  applied  to  cases  where  the  sole  duty  of 


540       COURT  OF  ERRORS  A^'D  APPEALS. 

Hobuken  Land  and  ImprovemeiU  Cu.  v.  Mayor,  &,c.,  of  Hoboken. 

tlie  appraisers  is  to  ascertaiu  the  value  of  land  or  other 
tangible  property,  the  views  urged  by  the  counsel  of  the  plain- 
tiffs in  error  are  not  sustained  by  the  language  of  the  act,  nor 
by  the  decisions  of  our  courts;  and,  a  fortiori,  that  they  can- 
not be  maintained,  where,  as  in  this  case,  tl>e  chief  subject  of 
the  appraisement  is  a  franchise,  which  cannot  in  the  nature 
of  tilings,  be  viewed  and  examined  in  the  sen.se  of  the  act, 
and  the  value  of  which  the  appraisers  must  therefore  of  neces- 
sity ascertain  in  some  other  way. 

The  judgment  of  the  Supreme  Court  is  right,  and  must  be 
afiSrmed,  with  costs. 

For  affirmance — The  Chancellor,  Chief  Justice,  Be- 

DLE,  SCUDDER,  WOODHULL,  ClEMEXT,  GkEEN,  LiLLY.  8. 

For  reversal — None. 
Cited  in  Columbia  Del.  Bridge  Co.  v.  Geisse,  9  Vr.  39. 


THE  HOBOKEN  LAND  AND  IMPROVEMENT  COMPANY  v. 
THE  MAYOR  AND  COMMON  COUNCIL  OF  THE  CITY  OF 
HOBOKEN. 

1.  Ejectment  will  lie  at  the  suit  of  an  incorporated  city,  for  lands  dedi- 
cated to  a  public  use  for  a  street. 

2.  Acceptance  of  a  dedicated  street  by  a  formal  act  or  public  user,  is  not 
essential  to  cut  off  the  owner  from  the  power  of  retraction,  and  sub- 
ject the  dedicated  lands  to  the  public  use,  when  in  the  judgment  of 
the  local  authorities  the  wants  or  convenience  of  the  public  require  it 
for  that  purpose. 

3.  A  street  delineated  on  a  dedicating  map  as  extending  to  a  public  navi- 
gable river,  will  be  continued  to  the  new  water  front  obtained  by  fill- 
ing in  by  the  owner,  under  legislative  permission. 

4.  An  ordinance  of  the  municipal  government  adopting  a  part  of  a 
public  street  for  pi-esent  use,  is  not  an  abandonment  of  the  rest  of  it. 

5.  The  local  corporate  authorities  liave  no  power  in  the  absence  of  legis 
lative  authority,  to  release  the  public  right  in  a  dedicated  street. 

6.  Lapse  of  time,  however  long  the  public  right  in  a  street  is  suspended, 
though  coupled  with  an  user  by  the  owner,  which  would  otherwise  be 
adverse,  will  not  make  title  by  prescription  against  the  public. 


JUNE  TERM,  1873.  541 

Hoboken  Land  and  Improvement  Co.  v.  Mayor,  &c.,  of  Hoboken. 

7.  The  legislature  alone  has  the  power  to  release  the  dedicated  lands 
and  discharge  the  public  servitude. 

8.  An  act  of  the  legislature  incorporating  a  land  and  improvement  com- 
pany, and  authorizing  it  to  fill  up,  occupy,  possess,  and  enjoy  all  land 
covered  with  water,  fronting  and  adjoining  lands  that  might  be  owned 
by  the  corporation,  and  to  construct  thereon  wharves,  piers,  slips,  and 
other  structures  for  commercial  and  shipping  purposes,  will  not  extin- 
guish the  public  right  of  access  to  the  navigable  waters  by  a' street  on 
land  purchased  by  the  company,  which,  by  the  dedication,  terminated 
at  the  high-water  line,  as  it  was  when  the  dedication  was  made ;  but 
the  connection  of  the  street  with  the  navigable  waters  will  be  con- 
tinued over  lands  reclaimed  by  filling  in  under  such  legislative  per- 
mission. 

9.  The  owner  of  lands  on  tide  water,  by  a  map  filed  in  1805,  dedicated 
streets  and  squares  to  a  public  use.  In  1833,  the  defendants  were 
incorporated  as  a  land  and  improvement  company.  In  1839,  they 
acquired  title  in  fee  to  the  tfact  through  which  the  dedicated  streets 
were  laid.  By  the  charter,  the  company  was  authorized  to  fill  up, 
occupy,  possess,  and  enjoy  all  land  covered  with  water,  fronting  and 
adjoining  lands  that  might  be  owned  by  the  corporation,  and  con- 
struct thereon  wharves,  &c.,  with  proviso  that  it  should  not  be  law- 
ful to  fill  in  or  construct  any  v?harf,  &c.,  immediately  in  front  of 
lands  of  any  other  person,  owning  to  the  water,  without  consent  in 
writing.  In  the  map  of  dedication.  Fourth  street  was  delineated  as 
terminating  at  the  water,  and  it  was  found  by  the  jury  that  the  dedi- 
cation was  to  high  water,  as-  it  was  when  the  map  was  made.  The 
company  filled  in  a  considerable  distance  beyond  that  line.  In  1857, 
the  city  passed  an  ordinance  that  Fourth  street  should  extend  between 
certain  limits  short  of  the  original  line  of  high  water.  The  defend- 
ants continued  in  possession  of  the  rest  of  the  street  until  this  action 
was  brought  in  1870.  In  ejectment  by  the  city  for  that  part  of  the- 
dedicated  street — Held,  that  the  street  was,  by  operation  of  law,  ex- 
tended to  the  new  water  front  obtained  by  filling  in,  and  that  the 
public  right  of  access  to  the  water  had  not  been  abandoned  or  lost  by 
lapse  of  time,  or  re)>iased. 


On  error  to  the  Supreme  Court, 

This  was  an  action  of  ejectment.  The  case  came  on  to 
trial  at  the  Hudson  Circuit,  at  the  Term  of  October,  1871, 
before  Justice  Bedle  and  a  jury.  Several  exceptions  were 
taken  during  the  trial  of  the  cause,  and  the  judgment  of  the 
Supreme  Court  was  removed  into  this  court  by  writ  of  error. 

VoT..  VII.  34 


542        COURT  OF  ERRORS  AND  APPEALS. 

Hoboken  Land  and  Improvement  Co.  v.  Mayor,  &c.,  of  Hoboken. 

The  facts  of  the  case  fully  appear  in  the  opinion  of  the 
court. 

For  the  plaintiffs  in  error,  F.  B.  Ogden,  I.  W.  Scudder 
and  B.  Williamson. 

For  the  defendants,  J.  C.  Besson  and  T.  N.  McCarter. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  The  action  in  this  case  is  in  ejectment  at  the 
suit  of  the  city,  to  recover  a  strip  of  land  within  the  lines  of 
Fourth  street,  in  the  city  of  Hoboken,  between  River  street 
and  the  line  of  low  water  in  the  Hudson  river,  as  it  was  when 
the  suit  was  commenced.  A  part  of  the  land  in  dispute  was 
land  above  the  ancient  high-water  line,  but  the  greater  por- 
tion was  such  as  had  been  reclaimed  by  the  defendants  from 
.the  tide  waters  of  the  river. 

The  tract  of  land  on  which  the  city  has  been  built,  was 
formerly  the  pro[)erty  of  Col.  John  Stevens,  and  contained, 
originally,  564  acres.  In  1804,  Col.  Stevens  caused  to  be 
auade  "  a  plan  of  the  new  city  of  Hoboken,  in  the  county  of 
Bergen,"  known  as  Loss'  maj),  which  was  filed  in  the  clerk's 
office  of  the  county  of  Bergen,  in  April,  1805.  Tiie  testi- 
mony leaves  no  room  for  a  doubt  that  a  dedication  was  effected 
of  the  streets  and  squares  delineated  on  this  map.  Among 
the  streets  so  delineated  wf»s  Fourth  street,  which  was  laid 
■westerly  from  and  at  a  right  angle  with  the  river.  The  jury 
found,  as  a  question  of  fact,  that  Fourth  street,  as  laid  on 
Loss'  map,  extended  to  ordinary  high  water,  as  it  was  at  the 
time  the  map  was  made. 

The  defendants  were  incorporated  by  an  act  passed  on  the 
21st  of  February,  1838.  By  the  fourth  section  of  the  incor- 
porating act,  they  were  empowered  to  purchase,  fill  up,  occupy, 
possess,  and  enjoy  all  land  covered  with  water  fronting  and 
adjoining  the  lands  that  might  be  owned  by  them,  and  to  con- 
struct thereon  wharves,  harbors,  piers,  and  slips,  and  all  other 
structures  requisite  or  proper  for  commercial  and  shipping 


JUNE  TERM,  1873.  543 


Hoboken  Land  and  Improvement  Co.  v.  Mayor,  &c.,  of  Hoboken. 

purposes :  provided,  that  it  should  not  be  lawful  for  the  com- 
pany to  fill  up  any  such  land  covered  with  water,  nor  to  con- 
struct any  dock,  pier  or  M'harf  immediately  in  front  of  the 
lands  of  any  other  person  owning  down  to  the  water,  without 
the  consent  of  such  person  first  had  in  writing.  Acts  1838, 
p.  95. 

In  May,  1839,  the  defendants,  by  a  deed  of  conveyance, 
executed  by  Edwin  A.  Stevens  and  others,  became  the  owners 
in  fee  of  the  entire  tract,  excepting  such  parts  as  had  pre- 
viously been  conveyed  by  Col.  Stevens  in  his  lifetime,  and  by 
Edwin  A.  Stevens  whilst  he  was  the  owner.  Subsequent  to 
this  conveyance,  the  company  under  the  powers  in  their 
charter,  filled  in,  in  front  of  and  adjacent  to  the  lines  of  the 
street,  a  considerable  distance  beyond  the  line  of  high  water, 
as  it  existed  when  the  Loss  map  was  made. 

The  jury,  under  the  charge  of  the  court,  awarded  to  the 
plaintiffs  the  strip  of  land  within  the  lines  of  Fourth  street 
from  River  street,  and  extended  over  the  land  acquired  by 
reclamation  between  the  old  high  water  line  and  the  new  line 
of  high  water,  obtained  by  the  filling  in. 

A  number  of  exceptions  were  taken  at  the  circuit  to  the 
charge  of  the  court,  and  the  refusal  to  charge  as  requested. 
The  exceptions  are  in  substance  comprised  in  the  points  here- 
inafter considered. 

It  was  contended  by  the  defendants'  counsel  that  the  plain- 
tiffs had  not  such  right  or  title  to  the  premises  as  would  enable 
them  to  maintain  ejectment. 

The  action  of  ejectment  is  a  possessory  action.  All  that  is 
involved  in  it  is  the  right  of  possession,  and  the  party,  whether 
plaintiff  or  defendant,  in  whom  is  vested  the  right  of  posses- 
sion, is  entitled  to  succeed  in  the  action,  without  regard  to 
where  the  ulticiate  fee  may  be.  On  this  principle  in  Du7n~ 
mer  v,  J)en,  Spencer  86,  it  was  held  that  a  municipal  corpora- 
tina  might  bring  ejectment  to  recover  a  square  situate  within 
the  corporate  limits,  which  had  been  dedicated  to  that  public 
use.  In  a  later  case,  the  plaintiffs  in  this  action  recovered  in 
ejectment  a  public  square  in  the  city  of  Hoboken,  which  had 


544      COURT  OF  ERRORS  AND  APPEALS. 

Hoboken  Land  and  Improvement  Co.  v.  Mayor,  &c.,  of  Hoboken. 

been  dedicated  by  the  same  instrument  of  dedication  which  is 
in  controversy  in  this  cause.  Methodist  Church  v.  City  of 
Hoboken,  4  Vroom  13.  In  the  first  of  these  cases  tlie  action 
was  held  to  be  appropriate  on  the  ground  that  by  force  of  an 
act  of  incorporation  which  gave  to  the  municipal  authorities 
the  usual  powers  over  streets,  squares  and  public  places,  the 
rights  of  the  public  in  common  property  became  vested  in 
the  corporation.  In  the  latter  case,  the  broad  doctrine  was 
adopted  that  the  right  to  maintain  appropriate  actions  for  the 
vindication  of  the  public  right  in  lands  dedicated  to  a  public 
use  was  lodged  in  the  local  public  authorities.  In  neither  of 
these  eases  had  an  ordinance  appropriating  the  lands  to  the 
proposed  public  use,  preceded  the  commencement  of  the 
action. 

Where  the  public  easement  is  such  that  possession,  exclu- 
sive of  any  interference  by  the  owner  of  the  fee,  is  essential 
for  its  improvement,  regulation  and  enjoyment,  the  only  ap- 
propriate action  to  obtain  the  possession  is  ejectment.  To 
deny  this  form  of  relief  and  remit  the  public  to  a  remedy  by 
indictment  for  a  nuisance,  would  result  in  subjecting  public 
rights  in  property  to  the  varying  moods  of  grand  juries. 

By  the  charter  of  the  city,  its  municipal  authorities  are- 
charged  with  duties  in  relation  to  opening  streets  and  paving 
and  putting  them  in  condition  for  public  use,  and  amending 
and  repairing,  which  require  a  possession  as  exclusive  as  in 
cases  of  public  squares.  Whatever  be  the  rule  with  respect  to 
ordinary  country  highways,  or  as  between  the  owner  of  the 
fee  and  a  mere  trespasser,  it  is  entirely  consistent  with  the 
principles  on  which  the  action  of  ejectment  is  founded  that 
ejectment  should  lie  at  the  suit  of  a  municipal  corporation  to 
recover  lands  over  which  a  street  in  law  exists. 

The  Supreme  Court  of  the  United  States  has  decided  that 
a  municipal  corporation  may  defend  ejectment  at  the  suit  of 
the  owner  of  the  fee,  by  setting  up  the  right  of  possession  in 
a  street  nr  common,  under  the  rights  acquired  by  the  public 
in  the  dedication  to  a  public  use.  Barclay  v.  Howell's  Les- 
sees, 6  Peters  498;  Cincinnati  v.  White,  10  lb.  631.     The 


JUNE  TERM,  1873.  545 

Hoboken  Land  and  Improvement  Co.  v.  Mayor,  &c.,  of  Hoboken. 

rule  is  otherwise  in  case  the  servitude  is  a  mere  private  ease- 
ment. Morgan  V.  Moore,  3  Gray  319.  If  the  right  of  pos- 
session under  a  public  easement  may  be  made  a  defence  in 
ejectment,  no  reason  can  be  advanced  why  it  should  not  be 
also  available  to  support  an  action  to  recover  the  possession. 

No  difficulties  or  embarrassments  in  the  way  of  the  prose- 
cution of  the  suit  will  arise  from  that  section  of  the  practice 
act  which  gives  to  a  judgment  in  ejectment  a  conclusive  effect 
upon  the  right  of  possession.  Nix.  Dig.  744,  §  77.  '  The 
operation  of  that  section  is  only  upon  the  right  of  possession 
which  existed  at  the  termination  of  the  suit,  and  it  will  not 
conclude  the  defeated  party  as  to  a  right  of  possession  subse- 
quently accruing.  Upon  any  other  hypothesis,  ejectment  by 
a  tenant  for  years,  or  any  estate  less  than  a  fee  against  the 
reversioner,  would  become  disused  by  force  of  this  section,  as 
the  plaintiff,  at  the  trial,  could  not  show  a  right  of  posses- 
sion co-extensive  in  duration  with  the  ultimate  fee.  As 
between  the  parties  to  this  suit,  if  the  public  use  shall  in  th€ 
future  be  extinguished  by  competent  authority,  a  right  of 
possession  will  thereupon  arise  in  the  defendants  from  their 
title  in  fee,  which  will  enable  them  to  recover  possession 
without  regard  to  the  effect  of  the  judgment  in  the  present 
action. 

The  other  exceptions  relate  to  the  merits  of  the  controversy. 

It  was  argued  that  the  dedication  had  not  been  consumma- 
ted when  the  suit  was  brought,  by  reason  of  the  absence  of 
an  acceptance  or  user  by  the  public  of  that  part  of  the 
street  which  is  in  controversy.  That  question  has  been  set 
at  rest  in  the  courts  of  this  state.  Acceptance  by  a  formal 
adoption  by  the  public  authorities  or  by  public  user  is  neces- 
sary to  impose  on  the  public  the  duty  to  amend  or  repair, 
but  is  not  essential  to  the  consummation  of  the  dedication  so 
as  to  cut  off  the  owner  from  the  power  of  retraction  or  sub- 
ject the  dedicated  lands  to  the  public  use,  whenever,  in  the 
estimation  of  the  local  authorities,  the  wants  or  convenience 
of  the  public  require  it  for  that  purpose.  Dummer  v.  Den; 
Methodist  Church  v.  Hoboken  ;  Mayor  of  Jersey  City  v.  Mor- 


546       COURT  OF  ERRORS  AND  APPEALS. 

Hoboken  Land  and  Improvement  Co.  v.  Ma-yor,  &c.,  of  Hoboken. 

7'is  Canal,  1  Beas.  553.  But  if  recognition  and  adoption  by 
public  authority  be  essential  to  that  end,  the  case  furnishes 
conclusive  proof  of  such  public  action.  A  city  containing  a 
pojmlation  of  several  thousands  has  grown  up  on  the  terri- 
tory included  in  the  scheme  of  dedication,  of  which  this 
street  is  part.  In  addition  thereto.  Loss'  map  and  the 
streets  thereon  delineated,  including  the  street  in  controversy, 
by  name,  have  received  repeated  recognition  by  legislative 
action.  Acts,  1838,  j3.  94;  1855,  p.  465;  1858,  p.  233; 
preamble,  lS58,p.  369. 

The  main  contention  of  the  defendants'  counsel  on  the 
argument  was  with  respect  to  the  effect  of  the  dedication, 
which  was  proved  and  found  by  the  jury,  as  regards  the  right 
of  the  public  to  have  the  street  extended  over  the  lands  re- 
claimed beyond  the  original  high  water  mark. 

The  title  to  the  soil  between  the  high  water  line,  as  shown 
on  Loss'  map,  and  the  present  high  water  line,  was  origi- 
nally in  the  state.  It  became  the  property  of  the  defendants' 
by  reclamation  under  the  powers  contained  in  their  charter. 
The  contention  was  that  it  was  not  competent  for  Col.  Stevens 
to  impress  upon  lands,  the  property  of  the  state,  a  servitude 
such  as  the  plaintiffs  are  seeking  to  have  them  appropriated 
to,  and  that  when  the  defendants  acquired  title  under  legisla- 
tive permission,  they  were  entitled  to  hold  such  lands  unim- 
paired by  the  servitude  imposed  on  the  upland.  The  first 
branch  of  this  proposition  is  conceded.  But  whether  it  will 
be  available  to  his  grantees  to  defeat  the  present  claim  of  the 
dty,  will  depend  upon  considerations  incident  to  the  nature 
and  effect  of  the  original  dedication.  The  street  as  dedicated 
extended  to  the  high  water  mark,  as  it  then  was.  There  is 
no  street  shown  on  the  map,  or  in  fact,  along  the  river  in 
whicli  Fourth  street  might  terminate.  River  street,  which  is 
the  first  street  crossing  Fourth  street  parallel  with  the  river, 
is  laid  down  on  the  map  at  a  distance  of  about  seventy-five 
feet  from  the  high  water  line,  as  it  appears  on  the  Loss  map. 
The  location  of  Fourth  street,  with  its  terminus  at  the  water,, 
demonstrates  conclusively  that  its  purpose  was  to  provide  a 


JUNE  TERM,  1873.  547 

Hoboken  Land  and  Improvement  Co.  v.  Major,  &c.,  of  Hoboken. 

means  of  access  for  the  public  to  the  navigable  waters,  aiul 
such  was  the  scope  and  purpose  of  the  dedication. 

Although  the  doctrine  of  dedication  is  founded  on  principles 
which  are  peculiar,  yet  it  will  be  seen  on  an  analysis  and 
comparison  of  the  cases,  that  it  differs  from  a  grant  only  in 
the  mode  and  the  means  by  which  a  dedication  is  effected. 
Dedication  is  distinguishable  from  a  grant  in  that  no  special 
grantee  need  be  in  existence  to  accept  the  gift,  and  contrary 
to  the  rules  of  the  common  law,  an  interest  in  lands  may 
thereby  be  created  without  the  intervention  of  the  ordinary 
common  law  assurances.  The  intention  of  the  donor  may  be 
gathered  from  his  acts  and  declarations,  resting  only  in  parol. 
But  when  that  intention  is  once  ascertained,  the  character  and 
scope  of  the  dedication  are  as  unalterably  fixed  as  if  the  gift 
had  been  consummated  by  a  formal  instrument  of  grant.  The 
same  legal  incidents  and  consequences  attach,  and  the  donor 
is  equally  concluded  from  any  act  which  will  impair  the 
effect  of  the  gift.  It  was  in  this  view  of  the  nature  and  effect 
of  a  dedication,  that  the  Supreme  Court  of  the  United  States 
applied  to  the  public  right,  acquired  by  dedication,  the  rule  of 
construction  of  private  grants,  that  a  grant  of  land  bounded 
on  a  stream  which  has  gradsially  changed  its  course  by  allu- 
vial formations,  holds  to  the  new^  boundary,  including  the 
accumulated  soil.  New  Orleans  v.  The  United  States,  10  Peters 
717. 

On  the  same  principle,  this  court  held  that  a  dedicated 
street  terminating  at  the  waters  of  a  navigable  river,  is  con- 
tinued to  the  new  water  front  obtained  by  filling  in,  in  front 
of  the  shore,  by  the  owner  of  the  land  over  which  a  street 
was  dedicated.  Jersey  City  v,  Morris  Canal,  1  Beas.  548. 
The  criticism  by  counsel  on  the  case  just  cited  was,  that 
the  opinion  of  Mr.  Justice  Whelpley,  on  this  point,  not 
being  necessary  for  the  decision  of  the  cause,  was  mere  obiter 
dictum.  It  was  not  so  understood  by  Chancellor  Green,  in 
Newark  Lime  and  Cement  Co.  v.  The  Mayor  of  Newark,  2 
McCarter  64,  in  which  it  was  distinctly  held  that  the  survey 
of  a  highway  to  a  navigable  river  carried  the  highway  to  the 
river,  wherever  it  is  found,  and  that  if  the  shore  is  extended  by 


648       COURT  OF  ERRORS  AND  APPEALS. 

Hoboken  Laud  and  Improvement  Co.  v.  Mayor,  &c.,  of  Hoboken. 

alluvial  deposit,  or  by  filling  in  by  the  pro{)rietor,  the  public 
easement  is,  by  operation  of  law,  extended  from  its  former 
terminus  over  the  new  made  land  to  the  water.  In  both 
these  cases.  The  People  v.  Lambier,  5  Denio  9,  a  case  in  many 
respects  similar  to  that  now  before  tiie  court,  was  cited  with 
approbation.  In  Barclay  v.  Howell's  Lessees,  the  dedicated 
street  lay  along  the  banks  of  the  Monongahela,  which  was  a 
navigable  river.  In  the  plan  of  dedication,  the  northerly 
line  of  the  street  only  was  marked;  and  on  the  south  of  that 
line  a  space  was  left  open  to  the  river.  The  width  of  the 
street  was  undefined,  and  nothing  appeared  on  the  plan  to 
limit  its  width  short  of  the  river.  In  a  controversy  between 
the  right  of  the  city  and  the  owner  of  the  fee  in  relation  to  a 
strip  of  land  along  the  river,  the  claim  of  the  city  was  sus- 
tained. In  the  opinion  of  the  court,  Mr.  Justice  McLean 
declared  that  it  was  of  no  importance,  whether  the  dedication 
was  to  high  or  low  water  mark ;  that  with  boundary  of  the 
street  on  a  public  river,  the  public  right  in  the  street  was 
limited  only  by  the  public  right  in  the  navigable  waters,  and 
that  to  contend  that  between  the  boundary  Of  the  street  and 
the  public  right  in  the  river,  "a  private  and  hostile  right 
could  exist,  would  not  only  be  unreasonable,  but  against  law." 

In  my  judgment,  these  cases  declare  the  law  correctly  on 
this  subject.  Tiie  essence  of  the  gift  is  the  means  of  access  to 
the  public  waters  of  the  river,  the  adv.antage  of  which  in- 
dued I  lie  growth  of  a  city,  by  reason  of  its  adjacency  and 
connection  with  the  important  navigable  waters  of  the  Hud- 
son, which  gave  a  peculiar  commercial  value  to  the  lots  put 
in  the  market  by  the  dedication,  which  can  only  be  preserved 
by  maintaining  unbroken  the  connection  of  the  streets  with 
the  navigable  river.  Any  obstructions  of  that  access  would 
not  only  derogate  from  the  effect  of  the  gift,  but  would  also 
be  a  public  nuisance. 

The  remaining  exceptions  are  based  on  the  assumption 
that  tlie  ea,<ement  has  been  abandoned  by  the  municipal 
authorities,  or  become  extinct  by  lapse  of  time,  or  that  that 


JUNE  TERM,  1873.  549 

Hoboken  Land  and  Improvement  Co-,  v.  Mayor,  <&c.,  of  Hoboken. 

part  of  it  which  would  otherwise  extend  over  the  reclaimed 
land,  has  been  discharged  by  legislative  action. 

The  insistment  that  the  easement  has  been  abandoned,  rests 
on  the  ordinance  adopted  by  the  common  council  on  the  30th 
of  December,  1857,  which  ordains    that    Fourth  street  shall 
extend  westerly  from   River  street  to  the  line  ditch.     The 
ordinance  does  Hot  admit  of  that  construction.     Its  import  is 
merely  an   adoption  of  the  street  for  present  improvement, 
with  a  view  to  assume  the  burden  of  putting  it  in  condition 
for  use,  and  of  emendation  and  repair.     But  if  the  ordinance 
admits  of  a  different  construction,  the  conclusive  answer  to 
this   position    lies  in  the  fact  that  the  municipal  authorities 
have  no  power  to  discharge  the  public  right.     The  easement' 
is  vested  in  the  public.     The  local  corporate  authorities,  by 
the  city  charter,  are  empowered  to  open,  work,  amend  and 
repair  streets.     Incident  to  that  is  the  discretion  when  and 
how  a  dedicated  street  shall  be  improved  for  public  use,  and 
the   power   to  bring  suits   to  assert  and  protect  the  public 
right.     But  they  cannot  release  or  discharge  the  public  right 
unless  authorized  to  do  so  by  legislative  authority,  or  apply 
the  lands  to  a  purpose  different  from  the  uses  for  which  the 
dedication  was  made.     Methodist  Church  v.  Hoboken.     Nor 
will  lapse  of  time,  however  long  the  public  user  is  suspended 
in    abeyance,  though    coupled    with  an    user   by  the  owner, 
which  might  otherwise  be  adverse,  make  title  by  prescription 
against  the  public.     Mayor  of  Jersey  City  v.  Morris  Canal; 
Cross   V.    Morristoion,  3   C  E.   Green  305.     The  legislature 
alone  has  the  power  to  release  the  dedicated  lands  and  dis- 
charge the  public  servitude  when  it  once  has  attached.     Ex- 
tinguishment  by  legislative   action,  it   is    insisted,  has    been 
effected  as  to  part  of"  the  premises  in  dispute,  by  the  fourth 
section  of  the  defendants'    act  of  incorporation.     The  argu- 
ment was,  that  the  land  below  high  water  being  the  property 
of  the  state,  and  both  the  easement  and  the  title  being  under 
legislative  control,  the  extinguishment  of  the   former,  by   a 
necessary  implication,  resulted   from  the  grant  of  the  latter. 
I  am  unwilling  to  concur  in  this  construction  of  the  statute. 


650       COURT  OF  ERRORS  AND  APPEALS. 

Hoboken  Land  and  Improvement  Co.  v.  Mayor,  &c.,  of  Hoboken. 

The  grant  to  the  defeudants  is  not  of  lands  of  the  state  in 
express  and  definite  terms.  The  right  conferred  is  a  mere 
privilege  of  reclamation  and  appropriation  to  private  uses. 
Its  exercise  is  expressly  limited  to  lands  covered  with  water 
in  front  of  and  adjoining  lands  that  shonld  be  owned  by  the 
corporation.  The  proviso  annexed  to  the  grant  shows  clearly 
the  legislative  intent,  that  the  rights  of  otliers  owning  to  the 
water  should  not  be  interfered  with  without  express  consent. 
In  The  People  v.  Lambier,  the  Supreme  Court  of  New  York 
in  construing  an  act  authorizing  certain  individuals  to  con- 
struct and  maintain  wharves,  docks,  piers  and  bulkheads  for 
private  use  in  the  East  river  in  front  of  their  lands,  decided 
that  lands  over  which  a  perpetual  right  of  way  existed  in 
favor  of  the  public  for  a  street,  were  not  included  within  the 
expression  "  their  lands,"  in  an  act  granting  privileges  to 
individuals.  The  Supreme  Court  of  this  state  in  The  State  v. 
Brown,  3  Dutcher  1.3,  held  that  the  owner  of  the  fee  who  had 
conveyed  to  a  canal  company  a  strip  of  land  bounded  on 
navigable  waters,  "  as  long  as  used  for  a  canal,"  was  not  en- 
titled to  a  license  under  the  wharf  act  to  build  docks  and 
wharves  in  front  of  such  lands,  and  that  although  it  might 
not  be  competent  for  the  canal  company,  under  their  charter^ 
to  acquire  the  rights  of  riparian  owners,  they  might  prevent 
the  owner  of  the  fee  from  exercising  those  rights.  It  is  a 
plain  deduction  from  the  opinion  of  the  Chief  Justice  in  that 
case,  that  in  his  view,  by  "  owner  of  lands  situate  along  or 
upon  tide  waters,"  in  the  wharf  act,  is  meant  the  present 
owner  of  an  immediate  estate  in  possession,  and  that  it  was 
not  intended  to  confer  the  privileges  of  the  act  upon  indi- 
viduals in  whom  the  ultimate  fee  was  vested,  subject  to  a 
present  possessory  right  in  others. 

The  State  v.  Brown  was  reversed  on  error,  but  not  with 
respect  to  any  of  the  grounds  on  which  it  was  decided  by  the 
Supreme  Court.  The  conclusion  reached,  and  the  reasoning 
which  led  to  it,  if  not  approved  were  not  disapproved  by  this 
court.  Any  other  construction  than  that  made  by  the  Su- 
preme Court  would  do  violence  to  the  just  rights  of  the  owners 


JUNE  TERM,  1873.  551 


Hoboken  Land  and  Improvement  Co.  v.  Mayor,  &c.,  of  Hoboken. 

of  est.ates  for  years,  for  life,  or  of  uncertain  duration  less  than 
the  unqualified  fee.  The  reversal  was  on  the  ground  of  the 
want  of  jurisdiction  in  the  board  of  chosen  freeholders  to  ad- 
judicate upon  the  title  to  lauds.  Brown  v.  Morris  Canal,  3 
Duicher  648. 

With  respect  to  lands  over  which  streets  have  been  laid, 
the  ownership,  for  all  substantial  purposes,  is  in  the  public. 
Nothing  remains  in  the  original  proprietor  but  the  naked  fee, 
which,  on  the  assertion  of  the  public  right,  is  divested  of  all 
beneficial  interest. 

It  is  not  necessary,  on  the  present  occasion,  to  express  any 
opinion  as  to  whether  the  defendants  could,  under  their  char- 
ter, have  filled  in,  in  front  of  streets  terminating  at  the  water, 
as  against  the  public  authorities  resisting  the  execution  of  the 
work.  The  cases  above  cited  are  referred  to  to  show  the 
strictness  of  the  construction  made  of  statutes  granting  privi- 
leges of  this  kind  to  private  persons.  The  decision  of  the 
Court  of  Chancery  and  of  this  court,  in  The  Keyport,  &c.,  Co. 
r.  The  Farmers'  Transportation  Co.,  3  C.  E.  Green  13,  511,  is 
also  illustrative  of  the  same  rule. 

The  defendants'  act  of  incorporation  would  probably  relieve 
the  defendants,  after  the  work  was  executed,  from  the  conse- 
quences of  an  unlawful  encroachment  on  public  lands  in  front 
of  the  streets,  and  of  a  nuisance  in  the  obstruction  of  navi- 
gation ;  but  it  cannot  affect  the  public  easement  of  access  to 
the  navigable  waters  which  existed  before  the  act  was  jDassed. 
That  public  right  is  entirely  distinct  in  its  essential  qualities, 
from  the  title  of  the  state  in  lands  under  tide  waters.  The 
former  inheres  in  the  state  in  its  sovereign  capacity.  The 
latter  is  strictly  proprietory.  A  grant  of  the  proprietory  title 
will  never  operate  as  a  release  or  ext'nguishment  of  a  sover- 
eign right  not  necessarily  included  within  tiie  scope  of  the 
grant.  The  State,  Morris  Canal  and  Banking  Co.,  pros.,  v. 
Haight,  ante  p.  471. 

The  grant  to  the  defendants  comprised  the  valuable  privi- 
lege of  acquiring  title  to  lands  under  tide  waters,  along  their 
entire  frontage  on  the  river.     The  public  easement  is  legally 


552   COURT  OF  ERRORS  AND  APPEALS. 

Hoboken  Land  and  luiprovement  Co.  v.  Mayor,  &c.,  of  Hoboken. 

consistent  with  title  to  the  soil  in  a  private  owner,  and  the 
legislative  intent  to  vest  the  proprietory  title  in  the  defend- 
ants, will  have  legal  effect  without  extinguishing  the  public 
right  of  access  to  the  river,  derived  from  the  original  dedica- 
tion. Where  two  public  rights  of  different  origin,  distinct  in 
their  nature,  and  capable  of  a  separate  enjoyment,  exist,  a 
grant  of  the  one  will  not  extinguish  the  other,  unless  required 
by  clear  and  unequivocal  language.  The  cardinal  rule  of  con- 
struction is  the  inquiry  whether  the  legislative  gift  can  take 
effect  without  drawing'  to  it  the  additional  right  claimed.  If  it 
can,  the  latter  is,  by  operation  of  law,  excluded  from  the  grant. 
Paterson  and  Newark  R.  R.  Co  v.  Stevens,  5  Vroom  532. 

In  The  People  v.  Lambier,  a  legislative  grant  to  individu- 
als of  the  privilege  to  fill  in  in  front  of  their  lands,  under 
which  the  owners  had  extended  the  main  land,  was  held  to 
be  inoperative  to  extinguish  the  public  right  of  access  to  the 
navigable  waters,  by  a  street  which  originally  had  its  termi- 
nus on  the  shore.  The  decision,  in  that  case,  is  founded  in 
correct  principle,  and  is  in  harmony  with  rules  of  construction 
frequently  applied  by  the  courts  of  this  state  in  construing 
public  grants. 

The  act  incorporating  the  defendants  contains  no  language 
indicative  of  an  intent  to  extinguish  the  public  right  of  access 
to  the  river,  and  the  defendants  hold  the  title  acquired  by 
legislative  permission,  subject  to  the  obligation  that  resulted 
from  the  original  dedication  of  permitting  the  connection  of 
the  street  with  the  navigable  waters  to  remain  unbroken. 

There  is  no  error  in  the  instructions  of  the  court  to  the 
jury,  and  the  jiulgment  should  be  affirmed. 

For  affirmance — The  Chancellor,  Chief  Justice,  Dal- 
niMPLE,  Depue,  Scudder,  Van  Syckel,  Woodhull, 
Clement,  Dodd,  Green,  Lathrop,  Lilly,  Wales.     13. 

For  reversal — None. 

Cited  in  Borou(/h  of  Chambersburg  v.  Manka,  10  Vr.  496  ;  Price  v.  Inhab- 
itants of  Plainfield,  11  Vr.  608;  iV.  Y.,  L.  E.  &  W.  B.  B.  Co.  v.  Yard,  14 
Vr.  121 ;  Hunt  v.  aNeill,  15  Vr.  564. 


JUNE  TERM,  1873.  551^ 


Morris  and  Essex  E.  R.  Co.  v.  State. 


THE  MOERIS  AND  ESSEX  EAILROAD  COMPANY,  PLAIN- 
TIFFS IN  ERROR,  V.  THE  STATE. 

1.  A  railroad  company  authorized  to  use  locomotive  engines  are  not  re- 
sponsible for  damage  occasioned  by  sparks  emitted  from  an  engine 
traveling  on  their  road ;  provided,  they  are  not  guilty  of  negligence, 
and  have  taken  due  precaution  to  prevent  injury  from  fire. 

2.  When  the  charge  in  an  indictment,  stripped  of  technical  language,  is, 
that  the  defendants  used  steam  engines  and  caused  them  to  pass  over 
their  road,  which  engines  emitted  sparks  and  thereby  set  lire  to  the 
adjoining  houses  and  herbage,  and  there  is  no  allegation  of  any  negli- 
gence or  want  of  care  or  skill  on  the  part  of  defendants — Held,  that 
the  language  of  the  indictment  cannot  be  extended  by  inference  or 
implication,  and  it  cannot  be  intended  that  due  skill,  care  and  dili- 
gence were  not  exercised  by  the  defendants  in  the  selection  and  con- 
struction of  their  engines,  or  that  there  was  any  negligence  or  want  of 
care  in  their  use. 

3.  A  mere  allegation  in  an  indictment  that  certain  facts  charged  are  to 
the  common  nuisance  of  all  the  citizens  of  the  state,  will  not  make  it 
a  good  indictment  for  a  common  nuisance,  unless  the  facts  charged  be 
of  such  a  nature  as  may  justify  that  conclusion  as  one  of  law  as  well 
as  of  fact. 


In  error  to  the  Supreme  Court. 

The  Morris  and  Essex  Railroad  Company,  the  plaintiffs  in 
error,  were  indicted  at  the  May  Term,  1867,  of  the  Oyer  and 
Terminer  of  the  county  of  Morris  for  nuisance. 

The  indictment  was  removed  to  the  Supreme  Court  by 
certiorariy  and  was  tried  at  the  Morris  Circuit  before  Justice 
Bedle  and  a  jury,  at  the  October  Term,  1869,  and  a  verdict 
of  guilty  was  rendered  against  the  defendants. 

The  record  was  removed  into  this  court  by  writ  of  error. 

For  the  plaintiffs  in  error,  /.  Vanatta. 

For  the  state,  A.  Mills. 


654       COURT  OF  ERRORS  AND  APPEALS. 

Morris  and  Essex  R.  R.  Co.  v.  State. 

The  opinion  of  the  court  was  delivered  by 

Green,  J.  The  Morris  and  Essex  Railroad  Company  were 
indicted  for  a  nuisance  in  the  Morris  Oyer  and  Terminer. 
The  indictment  having  been  removed  into  the  Supreme 
Court,  was  tried  before  one  of  the  justices  of  that  court  at  the 
Morris  Circuit,  and  the  company,  defendants  below,  found 
guilty  of  the  nuisance  as  charged  in  the  indictment.  The 
record  is  now  removed  into  this  court  by  writ  of  error. 

The  indictment  charges  in  substance  that  the  company  un- 
lawfully and  injuriously  placed  upon  their  road  divers 
locomotive  engines  driven  by  fire  and  steam,  and  caused  the 
same  to  pass  and  repass  over  their  said  road,  and  did  unlaw- 
fully and  injuriously  cause  the  said  engines  to  emit  and  throw 
out  to  a  great  distance  divers  pieces  of  fire,  and  did  cause  the 
same  to  fall  upon  the  fields,  herbage,  fences  and  buildings 
adjoining  said  road,  by  reason  whereof  the  same  caught  fire 
and  were  greatly  injured,  to  the  great  damage  and  common 
nuisance  of  the  citizens  of  this  state,  &c. 

The  charter  of  the  company  is  a  public  act,  and  authorizes 
the  construction  of  the  railroad  and  the  use  of  engines  upon  it. 
A  supplement  to  the  charter,  also  a  public  act,  enacts  that  the 
roads  of  the  company  shall  be  taken  and  deemed  public  high- 
M'ays  for  the  use  of  steam  engines  and  cars  propelled  by  steam 
engines  only.  Under  the  powers  conferred  by  their  charter 
the  company  were  engaged  in  the  prosecution  of  their  lawful 
business  in  the  only  mode  authorized  by  law. 

It  is  well  settled  upon  principle  and  by  numerous  decis- 
ions, that  a  railroad  company  authorized  to  use  locomotive 
engines  are  not  responsible  for  damage  occasioned  by  sparks 
emitted  from  an  engine  traveling  on  their  road;  provided, 
thev  are  not  guilty  of  negligence,  and  have  taken  due  precau- 
tion to  prevent  injury  from  fire.  In  suits  for  such  injuries, 
negligence  is  the  gist  of  the  action,  and  must  be  charged  in 
declaration. 

In  Vaughan  v.  Tcif  Vale  Railway  Co.,  5  Hurl.  &  Nor.  679, 
Chief  Justice  Cockburn  thus  states  the  general  principle: 
*'  Where  the  legislature  has  sanctioned  and  authorized  the  use 


JUNE  TERM,  1873.  555 

Morris  and  Essex  K.  E.  Co.  v.  State. 

of  a  particular  thing,  and  it  is  used  for  the  purpose  authorized, 
and  every  precaution  has  been  observed  to  prevent  injury,  the 
sanction  of  the  legislature  carries  with  it  this  consequence, 
that  if  damage  results  from  the  use  of  such  thing  independ- 
ently of  negligence,  the  party  using  it  is  not  responsil)le. 

The  King  v.  Pease  and  others,  4  Barn.  &  Adol.  30,  is  one 
of  the  earliest  cases  upon  the  subject,  and  was  cited  and 
approved  in  Vaughan  v.  Taff  Vale  Railway  Co.  In  this 
case  the  defendants,  employees  of  a  railroad  company,  were 
indicted  for  a  nuisance  in  running  steam  engines  near  a  pub- 
lic highway.  A  special  verdict  was  found,  stating  that  the 
defendants  used  the  locomotives  which  emitted  great  quanti- 
ties of  smoke,  fire,  and  steam,  and  made  a  great  noise  and 
rendered  traveling  on  the  highway  dangerous.  The  verdict 
also  stated  that  the  locomotives  were  of  the  best  construction 
then  known,  and  that  due  care  and  diligence  were  used  in 
their  management.  After  argument  judgment  was  rendered 
for  the  defendants. 

The  whole  charge  in  the  indictment  now  before  the  court, 
when  stripped  of  technical  language,  is,  that  the  defendants 
used  steam  engines  and  caused  them  tapass  over  their  road; 
which  engines  emitted  sparks  and  thereby  set  fire  to  the 
adjoining  houses  and  herbage.  There  is  no  allegation  of  any 
negligence  or  want  of  care  or  skill  on  the  part  of  the  com- 
pany. The  language  of  the  indictment  cannot  be  extended 
by  inference  or  implication.  It  cannot  be  intended  that  due 
skill,  care  and  diligence  were  not  exercised  by  the  company 
iu  the  selection  and  construction  of  their  engines,  or  that 
there  was  any  negligei^ce  or  want  of  care  in  their  use. 

A  mere  allegation  in  the  indictment,  that  certain  facts 
charged  are  to  the  common  nuisance  of  all  the  citizens  of  the 
state,  will  not  make  it  a  good  indictment  for  a  common  nui- 
sance, unless  the  facts  charged  be  of  such  a  nature  as  may 
justify  that  conclusion  as  one  of  law  as  well  as  of  fact.  2 
^Vhar,  Crim.  Law,  §  2362. 

The  case  of  The  People  v.  Sands,  1  Johns.  78,  is  analogous 
in  principle  and  directly  in  point.     That  was  an  indictment 


556       COURT  OF  ERRORS  AND  APPEALS. 

Morris  and  Essex  R.  R.  Co.  v.  State. 

for  nuisauce  in  keepiug  a  large  quantity  of  gunpowder  neat 
dwellings  in  a  city,  and  for  carrying  the  same  through  a  public 
street  in  a  cart,  the  wheels  of"  which  were  bound  with  iron. 
There  was  no  charge  of  negligence  or  want  of  care  in  kee[)ing 
the  powder,  or  in  guarding  it  from  accident  when  carried 
through  the  streets.  The  court,  after  conviction,  arrested 
judgment,  and  in  their  opinion  say:  "  If  the  facts  laid  in  the 
indictment  do  not  in  themselves  constitute  or  imply  a.  com- 
mon nuisance,  the  court  cannot  travel  out  of  the  record  to 
inquire  whether  such  facts  do  exist,  which,  if  charged,  would 
warrant  a  conviction.  It  is  essential  that  every  indictment 
of  this  kind,  where  the  principal  act  is  lawful,  should  state 
with  precision  what  has  rendered  it  otherwise ;  that  is,  from 
what  causes  arise  the  dangers  which  it  is  contemplated  to 
suppress.  The  prosecutor  ought  to  have  alleged  a  want  of 
care,  or  some  negligence  in  the  manner  of  storing  and  keeping 
the  powder. 

The  indictment  now  before  the  court  is  for  the  same  reason 
fatally  defective.  This  view  of  the  case  renders  it  unneces- 
sary to  consider  the  more  important  objection  urged  upon  the 
argument,  that  the  acts  charged  in  the  indictment,  even  if 
negligence  were  averred,  do  not  constitute  an  indictable 
offence.  Upon  this  point,  it  is  not  intended  to  intimate  any 
opinion. 

The  judgment  below  should  be  reversed. 

For  reversal — The  Chancellor,  Chief  Justice,  Dal- 
EiMPLE,  Depue,  Van  Syckel,  Woodhull,  Dodd,  Green, 
Lilly,  Wales.     10. 

For  affirmance — ^None. 


JUNE  TERM,  1873.  557 


Montclair  K.  E.  Co.  v.  Benson  et  al. 


THE  MONTCLAIR  RAILWAY  COMPANY,  PLAINTIFFS  IN 
ERROR,  V.  SAMUEL  BENSON  ET  AL.,  DEFENDANTS  IN 
ERROR. 

1.  On  a  trial  before  a  jury,  on  appeal  from  appraisement  by  commis- 
sioners of  damages  for  lands  taken  by  a  railroad  company,  there  is 
no  inflexible  rule  which  limits  the  period  over  which  inquiry  may  be 
extended  as  to  the  market  value  of  the  lands  taken.  How  long  ante- 
rior or  subsequent  to  the  first  appraisement  the  investigation  may  be 
carried,  must  be  left,  in  a  great  measure,  to  the  sound  discretion  of 
the  court. 

2.  Not  admissible  to  ask  a  witness  at  what  price  he  had  offered  for  sale 
adjoining  property. 


Ou  error  to  the  Essex  Circuit. 

This  was  an  appeal  from  an  award  of  commissioners  ap- 
pointed under  the  act  entitled  "  An  act  to  incorporate  the 
Montclair  Kailway  Company,"  approved  March  18th,  1867, 
in  the  matter  of  taking  the  lauds  of  Samuel  and  Henry 
K.  Benson.  The  appeal  was  tried  at  the  April  Term,  1872, 
of  the  Essex  Circuit,  before  Judge  Depue  aud  a  jury,  and  a 
verdict  rendered  for  the  plaintiffs,  of  $7007.11,  and  this  writ 
of  error  was  brought  to  remove  the  judgment  rendered 
upon  it. 

For  the  plaintiffs  in  error,  C.  Parker. 

For  the  defendants  in  error,  Thos.  N.  McCarter. 

The  opinion  of  the  court  was  delivered  by 

VA^'  Syckel,  J.  In  July,  1870,  commissioners  were 
appointed  to  value  ce)tain  lands  of  the  defendants  in  error, 
taken  by  the  Montclair  Railway  Company  for  the  construc- 
tion of  their  railroad,  and  to  appraise  the  damages  sustained 
by  the  said  defendants  by  reason  of  the  taking  of  their  lands. 

These  land  owners  being  dissatisfied   with   the  appraise- 

VoL.  VII.  35 


558      COURT  OF  ERRORS  AND  APPEALS. 

Montclair  R.  R.  Co.  v.  Benson  et  al. 

nient,  appealed  to  the  Circuit  Court  of  the  county  of  Essex 
for  a  trial  by  jury. 

The  case  comes  here  by  writ  of  error  to  review  the  action 
of  the  Circuit  Court,  rejecting  certain  testimony  offered  on 
the  part  of  the  railway  company.  The  trial  in  the  circuit 
commenced  on  the  17th  of  April  1872.  The  question  to  be 
determined  was  the  value  of  the  lauds  and  the  damages. 
of  the  plaintiffs  below,  at  the  time  of  the  assessment  by  the 
commissioners. 

After  the  plaintiffs  below  had  proven  the  value  of  their 
lands  and  their  damages,  William  Jacobus,  a  real  estate  agent, 
was  called  on  behalf  of  the  defendants,  and  asked  *'  at  what 
price  he  had  offered  for  sale,  since  the  summer  of  1871,  the 
property  adjoining  that  of  the  plaintiffs,"  and  also,  "  at  what 
price  he  had  offered  the  adjoining  property  for  sale  during 
the  summer  of  1871." 

These  two  questions,  which  are  similar  in  their  character, 
were  overruled  by  the  justice  who  tried  the  cause. 

There  is  no  inflexible  rule  in  these  cases,  which  limits  the 
period  over  which  tliis  inquiry,  started  by  these  questions,  may 
be  extended.  How  long  anterior  or  subsequent  to  the  first 
appraisement  the  investigation  may  be  carried,  must,  in  a  great 
measure,  be  left  to  the  sound  discretion  of  the  court  below, 
and  unless  it  appears  that  that  discretion  is  exercised  to  the 
injury  of  the  party  whose  evidence  is  rejected,  this  court 
ought  not  to  interfere.  In  some  cases,  financial  disturbances 
depress,  and  in  others,  speculative  movements  appreciate  val- 
ues, and  wherever  fluctuation  exists,  the  attempt  at  compari- 
son between  different  points  of  time,  would  not  only  furnish 
an  unsafe  guide,  but  introduce  new  issues  to  determine 
whether  there  had  been  a  rise  or  a  fall,  and  the  extent  of  it. 

The  evidence  overruled  would  have  introduced  other 
collateral  issues,  and  if  admitted,  would  have  entitled  the 
plaintiffs  to  show  that  the  adjoining  owner  was  under  some 
pressure  to  sell,  or  that  there  was  some  circumstance  which 
influenced  him  to  offer  his  property  below  its  actual  worth. 
And  it  might  well  be  that  the  damages  caused  by  the  building 


JUNE  TERM,  1873.  559 

Montclair  R.  R.  Co.  v.  Benson  et  al. 

of  the  railroad,  entered  into  his  computation  of  the  value  of 
his  lands. 
^  Tiie  question  was  not  what  the  witness,  as  an  expert,  esti- 
mated the  lands  to  be  worth,  but  what  the  owner  authorized 
him  to  sell  them  for.  It  not  unfrequently  happens  that  ' 
property  is  offered  below  its  fair  and  actual  value.  This 
evidence,  therefore,  was  properly  rejected. 

The  other  exceptions  are  of  the  like  import,  and  must  be 
subject  to  the  same  rule. 

In  my  opinion,  the  judgment  should  be  affirmed. 

For  affirmance — The  Chief  Justice,  Bedle,  Dalrim- 

PLE,     SCUDDEE,     VaN       SyCKEL,     WoODHULL,      ClEMENT, 

GnEEX,  Lilly,  Wales.     10. 
For  reversal — None. 
Cited  in  Metier  v.  Easton  and  Amboy  Railroad  Co.,  8  Vt.  222. 


At  the  November  Terra,  1873,  no  cases,  at  law,  were  de- 
termined in  the  Court  of  Errors  and  Appeals. 

561 


Additional  Rules  of  the  Supreme  Court. 
ADOPTED  JUNE  TERM,  1873. 


108.  That  hereafter  no  judgment  by  default  on  the  ground 
that  the  plea  is  a  sham  plea,  shall  be  entered  either  in  this 
Court  or  in  tiie  Circuit  Courts,  except  by  virtue  of  an  order 
of  the  Court  or  of  a  Judge  at  Chambers,  but  the  application 
for  such  order  may  be  made  on  ex  parte  affidavits,  and  with- 
out notice. 

109.  That  all  rules  of  reference  entered  by  consent  of  par- 
ties in  this  Court,  or  in  the  Circuit,  shall  state  whether  the 
award  of  the  referees  is  to  have  the  effect  of  a  finding  of 
arbitrators,  or  merely  the  force  of  a  verdict,  and  in  the 
absence  of  such  statement,  the  award  shall  be  treated  as  a 

verdict. 

563 


INDEX. 


ABATEMENT. 

The  third  section  of  the  act  respect- 
ing abatement^  {Nix.  Dig.  2,  |  3,) 
applies  to  the  case  of  a  sole  defend 
ant.    Fisher  v.  Allen  et  al.,        203 


ACTION. 

1.  A  judgment  obtained  in  a  pro- 
ceeding, by  attachment  against  a 
non-resident  debtor,  who  does  not 
appear  to  such  suit,  will  not  form 
a  legal  foimdation  for  an  action. 
Miller  v.  Dungan,  21 

2.  The  proceeding  is  in  rem,  and  has 
no  effect  except  with  respect  to  the 
property  attached.  lb. 

3.  Where,  in  a  suit  on  a  promissory 
note  against  three  defendants,  as 
joint  and  several  makers,  one  of 
the  defendants  dies  pending  suit, 
the  action  survives  against  the  other 
defendants,  and  cannot  be  contin- 
ued against  the  survivors  and  the 
representatives  of  the  deceased. 
Fisher  y.  Allen  et  al ,  203 

4.  A  person  having  his  house  and 
furniture  burned,  from  the  care-j 
lessness  of  agents  of  a  railroad 
company,  is  entitled  to  recover  the 
entire  amount  of  his  loss,  in  a  suit! 
against  such  company,  notwith- 
standing he  has  been  paid  by  an 
insurance  company  the  sum  for 
which  they  were  insured.  Weber 
V.  Morris  and  Essex  B.  B.  Co.,  213 

5.  If  such  party,  by  mistake,  deducts 
from  his  claim  in  such  suit,  the 
amount  of  the  insurance  money, 
the  judgment  in  the  first  suit,  if 
clearly  pleaded,  will  bar  a  further 
recovery.  fb. 


.The  foundation  of  the  right  of 
action  to  recover  a  bounty  offered 
for  volunteers,  is  the  contract  con- 
cluded by  the  offer  on  the  one  side, 
and  its  acceptance  by  the  other, 
supported  by  the  consideration 
whicli  results  from  the  perform- 
ance of  the  stipulated  service,  on 
the  faith  of  the  promise  contained 
in  the  offer.  Mayor,  dc,  of  Hobo- 
ken  V.  Bailey,  490 

7.  To  make  a  contract,  there  must  be 
mutual  assent,  or  an  offer  by  one 
party  and  consent  by  the  other. 
There  cannot  be  consent  to  an  offer 
so  as  to  make  a  contract,  when 
the  party  has  no  knowledge  of  the 
offer.  y^_ 

8.  The  county  of  H.  offered  a  bounty 
of  5400,  and  the  city  of  H.,  whicii 
was  within  the  county,  offered  an 
additional  bounty  of  $350.  Tlie 
plaintiff  volunteered,  and  was  cred- 
ited to  the  city.  On  his  enlist- 
ment, the  sum  of  $400  was  pi.id  to 
him  by  H.,  the  agent  of  the  county, 
which  was  repaid  to  the  agent  bv 
the  county.  In  an  action  in  the 
name  of  the  volunteer  procured  by 
H.  to  recover  the  bounty  of  the 
pity — Held,  that  the  circumstances 
indicating  that  the  plaintiff  volun- 
teered solely  for  the  county  boun- 
ty, without  any  knowledge'  that  a 
bounty  was  also  offered  by  tiie  city, 
it  should  have  been  left  to  the  jury 
to  say  whether  the  volunteer  had 
knowledge  of  the  city  bounty,  and 
volunteered  on  the  faith  of  receiv- 
ing it.  Jb. 

See  Broker,  1. 


AGENT. 


The  driver  of  a  horse  car  is  not  the 


565 


d66 


INDEX. 


agent  of  a  passenger  so  as  to  ren 
der  such  passenger  chargeable  for 
ths  negligence  of  such  driver 
Pennsylvania  R.  R.  Co.  v.  Mat- 
thews, />31 

AGREEMENT. 

See  Contract. 


AMENDMENT. 

1.  A  judge  at  a  circuit,  on  a  Supreme 
Court  issue,  may  allow  an  amend- 
ment, changing  the  action  from 
covenant  to  assumpsit.  United  States 
Watch  Co.  V.  Learned,  429 

2.  Such  act  is  discretionary,  and  is 
not  the  subject  of  a  writ  of  error. 

lb. 
See  New  Trial. 


AMERCEMENT. 

1.  The  mere  fact  of  the  non-return  of 
an  execution  is  not  suflBcient  to 
justify  an  amercement,  yet,  if  an 
inventory  should  be  filed,  there 
being  goods  upon  which  it  might 
operate  with  effect,  the  fact  that 
there  is  none  filed,  is  ground  for 
amercement.  Todd  &  Rafferty  v. 
Iloagland  et  al.,  352 

2.  Where  adverse  claim  is  set  up  to' 
property  levied  on  by  a  sheriff^  audi 
the  plaintiff's  attorney  and  the! 
sheriff  are  in  correspondence  as  to 
the  action  to  be  taken  in  the  prem-j 
ises,  the  latter  asking  and  the  for-i 
mer  promising  instruittions,  the' 
sheriff'  is  not  liable  to  amerce-i 
ment  for  not  proceeding  to  sale 
until  he  shall  have  displayed  or 
disregarded  positive,  reasonable, 
and  lawful  directions  to  that  end. 
Kemhl^s  Adm'rs  v.  Harris,         526 


ASSESSMENT  FOR  BENEFITS. 


expense  of  street  improvementa 
should  be  assessed  upon  and  paid 
by  the  lands  benefited,  in  propor- 
tion to  the  benefit  received.  An 
assessment  which,  by  the  report  of 
the  commissioners,  is  shown  to 
have  been  made  by  assessing  each 
lot  with  the  amount  of  earth  de- 
posited in  front  of  it,  at  the  price 
paid  the  contractor  for  the  work, 
is  not  warranted  by  the  law,  and 
will  not  support  a  title  made  under 
a  sale  for  the  payment  of  the 
assessment.  State,  Baxter,  pros., 
v.  Mayor  and  Aldermen  of  Jersey 
City,  188 

.  The  writ  having  been  allowed  after 
the  work  was  completed,  it  is  there- 
fore dismissed,  so  far  as  it  brings 
up  the  ordinance  complained  of. 
State,  Hoboken  Land  and  Improve- 
ment Co.  v.  Mayor,  &c.,  of  Hobo- 
ken, 291 

.  It  need  not  appear,  affirmatively, 
that  commissioners  of  assessment, 
who  are  permanent  officers  of  the 
city,  are  freeholders,  resident  in 
the  city,  as  required  by  section 
tiftj-two  of  the  charter.  lb. 

.  It  must  appear  by  the  commission- 
ers' report,  that  they  examined 
into  the  whole  matter,  and  that 
they  imposed  the  burdens  in  pro- 
portion to  the  benefits  received. 
lb. 

,  Burdens  in  excess  of  the  benefits 
cannot  be  imposed  exclusively 
upon  the  land-owners,  subject  to 
assessment.  If  the  lands  within 
the  circle  of  benefits  are  not  bene- 
fited as  much  as  the  improvement 
costs,  the  excess  must  be  borne  by 
general  taxation.  lb. 

.  Where  public  bodies  are  entrusted, 
by  statute,  with  powers  of  a  gen- 
eral nature,  it  must  appear,  from 
an  inspection  of  all  their  proceed- 
ings, when  properly  before  the 
court,  that  they  have  kept  strictly 
within  their  limited  sphere.  Slate, 
Wilkinson  el  al.,  v.  Inhabitants  of 
Trenton,  499 


1.  The  charter  of   Jersey   City,   of  7.  It  is   the  duty  of  the   relator  to 
1851,    provided    that    the    entire  I     bring  up  all  the  proceedings,  but 


INDEX 


567 


a  return  that  all  proceedings  are 
sent  up,  imposes  on  the  defendant 
the  burden  of  supplying  any  omis- 
Bion.  lb. 

8.  A  construction  will  be  adopted  to 
sustain  rather  than  to  defeat  the 
proceedings,  where  it  can  fairly  be 
done.  Ih, 

9.  Parties  to  be  afTected  by  such 
proceedings  entitled  to  notice, 
whether  the  statute  directs  notice 
to  be  given  or  not.  lb. 

10.  To  set  aside  an  assessment  for 
inequality,  it  must  be  shown  that 
commissioners  have  adopted  an 
erroneous  principle.  lb. 

11.  If,  up  to  the  point  of  imposing 
the  assessment  for  benefits,  all  the 
proceedings  have  been  stx-ictly  cor- 
rect, a  party  cannot  complain  that 
a  larger  assessment  has  not  been 
laid  upon  him.  lb. 

12.  If  the  land  owner  permits  large 
sums  of  money  to  be  expended  by 
the  city  after  the  assessment  is 
made,  before  he  applies  for  a  certi- 
orari, the  writ  should  not  be  allow- 
ed where  no  re-assessment  is  pro- 
vided for ;  and  if  allowed,  it  should 
be  dismissed  by  the  Supreme  Court 
when  the  facts  become  known.    lb. 

13.  The  action  of  commissioners  in 
making  assessments  of  damages 
and  benefits  for  improvements,  is 
judicial,  and  a  commissioner  inter- 
ested in  the  assessment,  otherwise 
than  as  a  general  tax  payer,  is  dis- 
qualified from  acting,  on  the  fun-! 
damental  maxim,  that  no  man  can 
be  a  judge  in  his  own  cause.  State, 
Winans,  pros.,  v.   Orane,   Collector,' 

394j 

14.  The  effect  of  his  interest  is  not 
confined  alone  to  the  commis-' 
sioners  interested,  for  the  action  of  i 
the  whole  body  of  commissioners 
is  voidable,  if  the  party  interested 
took  part  in  it,  and  even  if  there 
was   a    majority   of    the   commis-| 


sioners  left  competent  to  act  with- 
out his  vote.  Jb, 

15."The  fact  that  all  p«wer  being 
lodged  in  the  commissioners  to  lav 
out  roads  in  the  township,  and 
that  none  could  be  laid  if  it  hap- 
pened_  that  a  majority  of  them 
were  interested,  unless  they  were 
permitted  to  act,  will  not.  create 
such  a  legal  necessity  as  to  have 
interested  commissioners  sit  in 
judgment  on  their  own  cases.     lb. 

See  Public  Improvement,  1,  2,  3. 


ASSESSMENT  OF  TAXES. 

See  Taxation. 
Taxes. 


ATTACHMENT. 

1.  A  judgment  obtained  in  a  pro- 
ceeding, by  attachment  against  a 
non-resident  debtor,  who  does  not 
appear  to  siic'h  suit,  will  not  form 
a  legal  foundation  for  an  action. 
Miller  v.  Dangnn,  21 

2.  The  proceeding  is  in  rem,  and 
has  no  effect  except  with  respect 
to  the  property  attached.  lb. 

3.  The  attachment  act  does  not  ap- 
point the  mode  of  tiie  sheriff's 
return  of  the  writ,  and  conse- 
quently his  certificate  that  he  has 
duly  served  the  process,  accom- 
panied by  an  inventory  and  ap- 
praisement, constitutes,  standing 
alone  and  unexplained,  a  valid 
service.    Boyd  v.  King,  134 

4.  An  attachment  is  proper  whenever 
the  claim  is  founded  in  contract 
and  special  bail,  as  of  course, 
could  be  required  at  common  law, 

lb. 

5.  Query — Can  the  interest  of  a  ven- 
dee in  lands  under  an  agreement 
to  purchase  be  attached  ?  lb. 


568 


INDEX. 


€.  The  sheriff's  retnrn  in  this  case 
construed.  lb. 

7.  The  proceedings  under  the  attach- 
ment act  being  special  and  statu- 
tory, the  proper  remedy  for  review 
is   by  certiorari.     Curtis  v.  Steever, 

304 

8.  Where  tlie  return  to  the  writ  of 
attachment  shows  that  shares  of 
stock,  standing  in  the  name  of  a 
third  person,  and  in  the  name  of 
the  debtor's  wife,  have  been  taken, 
the  attachment  will  not  be  set 
aside  on  motion,  as  to  these  shares, 
where  it  is  alleged  there  was  a 
fraudulent  transfer  by  the  debtor 
to  hinder,  delay  and  defraud  credi- 
tors. Ih. 

9.  The  first  process  in  personal  ac- 
tions in  any  of  the  courts  of  law  of 
this  state,  is  a  summons  er  capias.^ 
The  writ  of  attacluuent  is  an  ex-j 
ceptional  and  extraordinary  reme-l 
dy  given  by  the  statute.  Leonard, 
V.  Stout,  370 

10.  The  practical  test,  in  case  of  for- 
eign attachment,  is  whether  a 
legal  service  of  a  summons  can  be 
made  on  the  debtor,  at  his  dwell- 
ing-house or  usual  place  of  abode, 
in  this  state.  If  it  can,  the  extra- 
ordinary writ  of  attachment  can- 
not be  used.  lb. 

11.  To  constitute  a  residence  in  the 
state,  within  the  attachment  act,  it 
must  be  the  debtors  home  where 
he  then  is,  or  to  which,  if  he  be 
absent,  he  has  the  intention  of  re- 
turning, and  where,  in  his  absence, 
he  is  represented  by  some  member 
of  his  family,  or  some  one  who 
can  answer  for  him  and  communi- 
cate with  him.  lb. 

12.  In  this  case  the  debtor  had  two 
places  of  a-bode — one  in  New  York 
and  one  in  New  Jersey.  The  deci- 
sive points  here  are,  that  he  votes 
in  this  state,  and  refused  to  vote 
in  New  York ;  has  often  expressed 
his  intention  to  reside  here;  that 
when  the  attachment  issued,  per- 
sons regarded  by  him  as  members 
of  his  family  were  living  at  his 
home  in  Morris  county  ;   that  this 


house  wa.s  kept  open,  and  often 
visited  by  him  and  his  wife  while 
they  were  living  in  New  York, 
through  the  winter,  lb. 


BANKRUPT   AND   BANK- 
RUPTCY. 

See  Insolvent  Laws. 


BASTARDY. 

1.  Where,  in  a  matter  of  bastardy, 
the  finding  of  the  jury  was 
"  guilty,"  and  the  justices  made  the 
record  of  it  in  these  words  :  "  That 
the  defendant,  S.  G.,  was  guilty, 
and  the  putative  father  of  the  said 
bastard  child" — iJdd,  that  the 
verdict  of  guilty  could  mean  noth- 
ing else  than  that  the  defendant 
was  guilty  of  the  accusation;  or, 
in  other  w^ords,  the  father  of  the 
cliild,  and  that  the  justices  were 
justified  in  making  the  entry  in 
form,  according  to  the  necessary 
meaning  of  the  finding.  Ga.'ikill 
v.  Overseer  of  Poor  of  Dovme,      356 

2.  Where  the  order  of  bastardy  de- 
termines that  the  child  is  charge- 
able to  the  township,  this  court 
will  not,  in  the  absence  of  evidence 
of  payment,  or  agreement  to  pay, 
on  the  part  of  the  township,  for 
the  support  of  the  mother  and 
child,  conclude  that  the  child  was 
not  chargeable  to  the  township, 
contrary  to  what  appears  on  the 
face  of  the  order.  lb. 


BILL  OF  EXCEPTIONS. 

Regularly  a  bill  of  exceptions  should 
be  drawn  up  and  sealed  during 
the  trial.  The  practice  has  been 
for  the  judge,  on  the  exception 
being  taken  and  a  minute  thereof 
made,  to  grant  time  for  the  pre- 
paration of  a  formal  bill  of  excep- 
tions, and  if  the  bill  be  presented 
within  a  reasonable  time,  to  aflSx 
his  seal  to  it:  when  this  is  done  it 


INDEX. 


569 


relates  back  as  if  the  bill  was  seal 
ed  at  the  trial.   State  v.  Holmes,  62 


BOAKD  OF  ASSESSORS. 

1.  When  the  board  of  assessors  meet 
under  pi.  95  of  the  tax  act,  (Nix. 
Dig.  953,)  the  township  to  wliose 
quota  of  tax  an  addition  is  pro- 
posed to  be  made,  cannot  offer 
evidence  to  rebut  any  alleged  in- 
equality. The  assessors  must  de 
termine  upon  their  own  knowledge 
the  existence  of  any  inequality. 
Slate,  Weehawken  Township,  pros., 
V.  Roe,  Clerk,  &c.,  86 

2.  Before  they  can  interfere  at  all 
with  any  duplicate,  they  must  de- 
cide that  the  valuation  contained 
in  it  is  relatively  less  than  the 
value  of  other  property  in  the 
county,  and  then  they  correct  it  as 
to  themselves  shall  seem  iust  and 
proper  I  b. 


BROKER. 

1 .  A  broker  procured  a  customer  for 
another  broker,  with  the  under- 
standing that  the  latter  should 
charge  for  the  procuring  a  loan  of , 
money  at  a  rate  prohibited  by  the 
statute,  and  that  such  commissions 
should  be  divided  ;  held,  that  a  suit 
would  not  lie  in  behalf  of  the  for- 
mer broker  for  his  share  of  such 
commissions  against  the  latter 
broker  to  whom  they  had  been 
paid  by  the  customer.  Gregory  ads. 
Wilsan,  315 

2.  To  entitle  a  broker  to  commissions 
for  services  in  negotiating  a  sale, 
the  services  must  be  rendered 
under  an  employment  by  his  prin- 
cipal. Services  rendered  as  a 
mere  volunteer,  without  any  em- 
ployment, express  or  implied,  will 
give  no  right  to  commissions. 
Hinds  V.  Henry,  328 

3.  The  general  rule  is,  that  the  righ' 
of  a  broker  to  commissions  is  com- 
plete when  he  has  procured  a  pur- 
chaser able  and  willing  to  conclude 


a  bargain  on  the  terms  on  which 

the  broker  was  authorized  to  sell. 

lb. 

4.  This  rule  rests  on  the  general 
usages  of  the  business,  and  is  liable 
to  be  modified  or  superseded  by  a 
special  usage  in  relation  to  the 
particular  transaction,  or  by  spe- 
cial agreement  between  the  parties. 

lb. 

5.  A  broker  may,  by  special  agree- 
ment with  his  principal,  so  con- 
tract as  to  make  his  compensation 
dependent  on  a  contingency  which 
his  efforts  cannot  control,  even 
though  it  relates  to  the  acts  of  his 
principal.  lb. 


CAMDEN  AND  AMBOY  R.  R. 
&  T.  COMPANY. 

1.  Under  the  charter  of  the  Camden 
and  Amboy  Railroad  and  Trans- 
portation Company,  the  exemption 
from  taxation  extends  to  all  prop- 
erty "  suitable  and  proper  for  car- 
rying into  execution  the  powers 
granted  to  the  corporate  body." 
State,  Camden  aud  Amboy  R.  R.  & 
T.  Co.,  pros.,  V.  Woodruff,  94 

2.  The  judgment  of  the  court  must 
be  passed  upon  the  question  of 
necessity  in  each  given  case  under 
the  facts  adduced  to  sliow  the  pui-- 
poses  to  which  the  lands  are,  or 
are  to  be,  devoted.  lb. 

3.  Lands  used  by  the  prosecutors  for 
the  necessary  purposes  of  the  rail- 
road company  are  exempt,  although 
the  title  is  in  the  Delaware  aud 
Raritan  Canal  Company,  for,  by 
the  act  of  February  15th,  1831, 
which  consolidates  these  compa- 
nies, there  is  an  absolute  commu- 
nity of  interest  between  them,  and 
so  far  as  taxation  is  concerned,  it 
matters  not  to  which  company  the 
estate  may  have  been  conveyed.  lb. 


CASES  AFFIRMED. 

1.  Bray   v.  Taylor.     From  Supreme 
Court.     3  Vrormi  182.  415 


570 


INDEX 


2  State,  Shreve,  pros.,  v.  Crossley, 
Collector  of  Trenton.  From  Su- 
preme Court.     June  Term,  1867. 

4251 

3.  United  States  Watch  Company  v. 
Learned.     From   Supreme   Court. 

429, 

4.  State,  Brittiu  et  al.,  pros.,  v.  Blake 
et  al.  From  Supreme  Court.  6 
Vroom  208.  443 


5.  Edwards  et  al.  v. 
Supreme    Court, 


Elliott.     From' 

6    Vroom    265. 

449 


6.  Geraghty  et  al.  v.  Hackley.  From 
Supreme  Court.  5  Vroom  332.   459 

7.  Downey  v.  Borden.  From  Su-| 
preme  Court.     6  Vroom  74.       460: 

8.  State,  Morris  Canal  and  Banking! 
Co.,  pros.,  V.  Haight,  Collector.! 
From  Supreme  Court.  6  Vroom 
178.  471 

9.  State,  Wilkinson  et  al.,  pros.,  v. 
Inhabitants  of  City  of  Trenton. 
From  Supreme  Court.  6  Vroom 
435.  499; 

10.  Haney  and  Scattergood  v.  Comp-j 
ton.  From  Cumberland  Circuitj 
Court.  507: 

11.  Pennsylvania  E.  R.  Co.  v,  Mat-[ 
tiiews.    From  Supreme  Court.   6311 

i 

12.  Columbia  Delaware  Bridge  Co, 
V.  Geisse.  From  Supreme  Court. 
6  Vroom  474,  537 

13.  Hoboken  Land  and  Improvement 
Co.  V.  Mayor,  &c.,  of  Hoboken. 
From  Supreme  Court.  540 

14.  Montclair  R.  R,  Co.  v.  Benson  et 
al.  From  Essex  Circuit  Court, 
557, 


CASES  REVERSED, 

1.  State,  Rogers,  pros.,  v.  Troth  et  al. 
From  Supreme  Court,  5  Vroom 
377.  422 


Sisson  V,  Donnelly.  From  Su- 
preme ("ourt,  432 

.  State,  Protestant  Foster  Home  So- 
ciety, pros.,  V.  Mayor,  &c.,  of  New- 
ark. From  Supreme  Court.  6 
Vroom  157.  478 

.  Peterson   and   Wife   v.    Mulford. 

From   Cumberland  Circuit  Court. 

481 

.  Mayor,  &c.,  of  Hoboken,  v.  Bailey. 
From  Supreme  Court.  490 

.  Kemble's  Administrators  v.  Har- 
ris, From  Supreme  Court.  6 
Vroom  392,  526 

.Morris  and  Essex  R.  R.  Co,  \, 
Slate.     From  Supreme  Court.    553 


CERTIORARI 

1.  Certiorari  will  not  lie  in  favor  of 
prosecutors,  who  have  sustained 
no  damage  peculiar  to  themselves. 
Slate,  Monltjomery,  pros.,  v.  Inhab- 
itants of  Trenton,  79 

2.  Where  three  terms  of  the  court 
have  intervened  between  the  re- 
turn of  a  public  road  and  an  ap- 
plication for  a  certiorari,  and  the 
road  in  the  meantime  has  been 
opened  and  worked,  an  allocatur 
will  not  be  granted,  and  if  one  has 
been  ordered,* it  will  be  dismissed 
when  tlie  facts  are  brought  to  the 
knowledge  of  the  court.  State, 
Charlier,  pros.,  v.  Woodruff,        204 

3.  The  proceedings  under  the  at- 
tachment act  being  special  and 
statutory,  the  proper  remedy  for 
review  is  by  certiorari.  Curtis  v, 
Steever,  304 

4.  If  the  land  owner  permits  large 
sums  of  money  to  be  expended  by 
the  city  after  the  assessment  is 
made  before  he  applies  for  a  certi- 
orari, the  writ  should  not  be  al- 
lowed where  no  re-assessment  is 
provided  for ;  and  if  allowed,  it 
sliould  be  dismissed  by  the  Su- 
preme Court  when  the  facta  be- 
come known.      State,  Wilkinson  el 


INDEX 


57L 


a/.,  pros.,  V.  Inhabitants  of  Trenton, 
500 


CHARTER  OF  CITY  OF  HOBO- 
KEN. 

1.  Where  the  report  of  assessment 
commissioners  for  street  improve-i 
ments  was  taken  fi'om  the  file  of 
the  city  council  and  returned  to 
the  commissioners  for  amend- 
ments upon  objections  made  by 
property  owners,  council  cannot 
recall  and  contirm  it  against  the 
protest  of  the  commissioners  with- 
out amendment,  and  without  no- 
tice. State,  Board  et  ai,  pros.,  v. 
City  of  Hoboken,  378 

2.  The  contractor  under  proposals 
must  be  held  to  his  bid — not  al- 
lowed to  underbid  others  and  after- 
wards receive  more.  The  excess 
will  be  an  illegal  charge  against! 
the  land  owners.  lb.\ 

3.  Where  the  assessment  is  set  aside,' 
new  commissioners  will  be  ap-j 
pointed  by  the  court,  under  the 
charter.  lb.\ 


CHARTER   OF   JERSEY  CITY.j 

See  Construction  of  Statutes,  1, 
2,  3,  4.  , 


CHARTER  OF  CITY  OF   NEW- 
ARK. 

An  assessment  of  the  costs,  &c.,  of 
regrading  a  street  under  the  act  of 
March  21st,  1866,  to  revise  and 
amend  the  charter  of  the  city  of 
Newark  not  sustained, — 

1.  Because  it  does  not  appear  by 
the  report  and  proceedings  sent  up 
that  the  assessment  was  made  upon 
each  owner  in  the  proportion 
required  by  the  act.  State,  Little, 
pros.,    V.    Mayor,    &c.,    of    Newark, 

170 

2.  Because  while  it  appeared  that 
two   of   the    three    commissioners 


appointed  to  make  the  assessment 
possessed  the  requisite  qualitica- 
tions,  this  did  not  appear  as  to  the 
third  one.  /ft. 


CHARTER    OF    CITY  OF   PET- 
ERSON. 

1.  An  ordinance  to  take  up,  &c.,  Ful- 
ton street,  and  an  ordinance  to 
grade  the  same  having  been  pars- 
ed, &c.,  but  without  the  notice  re- 
quired by  the  ninety-nintli  section 
lif  the  supplement  to  the  charter 
of  the  city  of  Paterson,  approved 
March  25th,  1869  —  Seld,  that 
however  fatal  the  ol)jection  as  to 
the  want  of  notice  might  have 
been  if  promptly  taken  and  acted 
upon  by  the  prosecutors,  it  cannot 
be  allowed  to  prevail  after  con- 
siderable delay,  under  circum- 
stances rendering  it  probable  that 
they  were  aware  of  the  inception 
and  progress  of  the  work,  and 
especially  after  the  improvement 
has  been  completed  and  paid  for 
by  the  city.  State,  Hampson,  pros  , 
V.  Mayor  and  Aldermen  of  Paterson, 

15'.i 

2.  The  expense  of  grading,  &c.,  under 
the  ninety-eighth  section  of  said 
supplement,  is  to  be  assessed,  &c., 
by  commissioners  possessing  the 
qualifications  required  by  sections 
104  and  110,  and  on  the  same  prin- 
ciple of  apportionment  adopted  by 
sections  102  and  104.  lb. 

3.  The  commissioners  having  report- 
ed that  they  had  made  a  just  and 
equitable  assessment,  &c.,  among 
the  property  owners,  &c.,  accord- 
ing to  tiie  advantages,  or  benefits, 
&c. ;  but  it  being  manifest  from 
the  schedule  accompanying  the  re- 
port as  well  as  from  the  testimony, 
that  there  was  in  fact  no  exercise 
of  judgment  by  the  commissioners, 
their  assessment  upon  each  owner 
being  governed  solely  by  the  ex- 
tent of  his  frontage — Held,  that  an 
assessment  so  maile  cannot  be  sus- 
tained, lb. 

4.  By  the  said  amended  charter,  all 
contracts,   &c.,  are  to  be  given  to 


572 


INDEX. 


the  lowest  bidder ;  the  contract  for 
grading,  &c.,  in  this  case  was 
awarded  to  H.  the  lowest  bidder, 
at  fifteen  cents  per  cubic  yard  ;  by 
the  contract  as  reduced  to  writing 
and  executed  by  H.  and  the  city,| 
the  grading  was  to  be  done  "for 
the  price  and  sum  of  fifteen  cents 
per  cubic  yard  for  earth  excava- 
tion, and  two  dollars  and  fifty  cents 
per  cubic  yard  for  all  rock  excava- 
tion," the  contract  being  so  drawn 
in  pursuance  of  an  ordinance,  the 
second  section  of  whicli  provides 
as  follows:  "That  hereafter,  when 
a  contract  is  made  by  the  city  of  j 
Paterson  for  grading  streets  or  ex-; 
cavating  earth,  and  no  price  is 
mentioned  for  rock  work,  there! 
shall  be  paid  to  contractors  twoj 
dollars  and  fifty  cents  for  eachl 
cubic  yard  of  rock  found,  provided 
said  rock  shall  exceed  one  cubic 
yard  in  size." — Held,  that  this  sec- 
tion of  the  ordinance  being  in 
direct  conflict  with  a  plain  provi- 
sion of  the  charter,  both  it  and  the 
written  agreement  made  in  pur- 
suance of  it,  are  utterly  void.     lb. 


CHAR  lER  OF  CITY  OF  TREN- 
TON. 

1.  The  common  council  of  the  city 
of  Trenton  have  no  authority  un 
der  the  general  power  to  regulate 
streets,  to  grant  to  an  individual 
license  to  lay  a  railroad  track 
across  the  public  street  for  his  own 
use.  State,  Montgomery,  pros.,  v. 
Inhabitants  of  Trenton,  79 

2.  Streets  and  highways  are  intended 
for  the  common  and  equal  benefit 
of  all  citizens,  to  which  end  they 
must  be  regulated.  lb. 

3.  The  common  council  cannot  dele- 
gate to  the  street  commissioner  the 
power  of  ascertaining  the  bound- 
aries of  streets,  where  they  are  in 
doubt.  This  is  in  the  nature  of  a 
judicial  function,  and  must  be  ex- 
ercised by  the  council  by  ordi- 
nance, with  special  reference  to 
the  street  to  be  opened,  and  a  mode 
provided  in  which  parties  to  be 
aflected  may  be  heard.     Stale,  Bo- 


dine,  pros.,  V.   Common   Council  of 
Trenton,  198 


CITY  OF  TRENTON. 

The   78th   section    of    the   road    act 

[Nixon  836)  does  not  apply  to  the 

city    of    Trenton.      Stale,   Bodine, 

pros.,  V.  Common  Council  of  Trenton, 

198 


COMMISSIONS. 
See  Broker,  2,  3,  4,  5. 

COMMISSIONERS  OF  APPEAL. 

The  commissioners  of  appeal  in  cases 
of  taxation,  have  a  right  to  recon- 
sider their  opinion  until  such 
opinion  has  been  oflBcially  pro- 
mulgated by  them.  State,  Shreve, 
pros.,  V.  Crossley,  Collector  of  Tren- 
ton, 425 

COMMON  CARRIBK, 

See  Contract,  13, 

CONDEMNATION    OF    LANDS. 

l.The  charter  of  the  E.  &  A.  Co., 
distinguishes  between  the  owner 
and  person  interested  in  the  pro- 
ceedings to  condemn  lands.  By 
owner  is  meant  the  person  having 
some  legal  estate  which  the  com- 
pany proposes  by  the  condemna- 
tion to  acquire.  Under  the  ex- 
pression, "persons  interested,"  are 
included  not  only  the  owner  whose 
estate  it  is  intended  to  acquire,  but 
also  other  persons  having  some 
independent  right  or  interest 
therein,  or  lien  or  encumbrance 
thereon.  Slate,  National  Railway 
Co.,  pros.,  V.  Easton  and.  Amboy  B. 
B.Co.,  181 

2.  The  proceeding  for  condemnation 


INDEX. 


573 


is  strictly  between  the  company 
and  the  persons  who  are  made 
parties  to  it.  The  omission  of  the 
owner  of  any  estate  in  the  lands  or 
part  owner  of  the  fee,  or  the  holder 
of  any  encumbrance  will  not  in- 
validate the  proceeding  as  against 
such  persons  as  are  made  parties 
The  consequence  will  only  be  that 
as  against  the  omitted  persons  the 
condemnation  will  be  nugatory 
lb 

3.  The  trustee  of  a  trust  in  lands  not 
executed  by  the  statute,  is  the 
proper  party  to  proceedings  to 
condemn  the  lands ;  the  cestui  que 
trust  need  not   be  made   a  party. 

lb. 

4.  The  condemnation  of  lands  owned 
by  one  railroad  company —not  used 
for  railroad  purposes — by  another 
company  for  use  in  the  construc- 
tion of  a  railroad,  will  be  unavail- 
able to  condemn  the  franchises  of 
the  former.  All  that  will  be  ac- 
quired will  be  a  right  of  way,  and 
incidentally,  the  power  to  cross 
the  track  of  the  former  where  the 
routes  of  the  two  roads  cross  each 
other.  lb. 


CONDITIONS  PKECEDENT. 

1.  A  general  averment  of  the  per- 
formance, on  the  part  of  the  plain- 
tiff, of  the  terms  of  a  contract,  re- 
quiring him  to  perform  conditions 
precedent,  is  sufhcient,  by  virtue 
of  the  twenty-fifth  section  of  the 
supplement  to  the  practice  act. 
VreeUind  v.  Beekman,  13 

2.  The  waiver  of  conditions  prece- 
dent must  he  strictly  proved  ;  con- 
tra as  to  conditions  subsequent. 
Mayor  and  Aldermen  of  Jersey  Oily 
ads.  Fitzpatrick,  120 


CONSTITUTION  AND  CONSTI- 
TUTIONAL LAW. 

1.  The  Chatham  local  option  law  de 
Glares  the  retail  of  ardent  spirits 
without  license  to  be  unlawful, 
and  provides  that  no  license  shall! 

Vol.  VII.  36 


be  granted  if  a  majority  vote  of 
the  township  is  for  "  no  license." 
Held,  that  the  act  is  constitutional. 
State,  ex  rel.  Sandford,  v.  Court  of 
Common  Pleas  of  Morris,  72 

.  The  right  to  remove  a  slate  officer 
for  misbehavior  in  office,  does  not 
appertain  to  the  executive  office. 
Such  act  is  judicial,  and  belongs 
to  the  court  of  impeachments. 
State,  ex  rel.  Police  Commissioners  of 
Jersey  City,  v.  Uritchard  et  al.,    101 

.  Certain  police  commissioners  of 
Jersey  City,  appointed  by  statute, 
having  been  convicted  upon  indict- 
ment of  conspiracy  to  cheat  the 
city,  and  tlie  governor  having  de- 
clared their  offices  to  be  thereby 
vacated,  and  having  appointed 
their  successors — Held,  that  such 
executive  action  was  illegal  and 
void.  lb. 

.  The  power  of  the  legislature  over 
corporations  created  for  purposes 
of  lociil  government,  is  supreme. 
The  legislature  may  alter  or  re- 
peal the  charter  at  any  time,  iu 
its  discretion.  The  only  limita- 
tion on  the  operation  of  such, 
repeal  is^  as  to  creditors,  that  it 
shall  not  operate  to  impair  the 
obligation  of  existing  contracts,  or 
deprive  them  oi  any  remedy  for 
enforcing  such  contracts  that  ex- 
isted when  they  were  made.  Rader 
V.  Southeasterly  Road  District  of 
Union,  27a 

.  Any  legislation,  the  effect  of  which, 
is  to  deprive  a  party  of  the  power 
to  resort  to  the  person  or  any  pro- 
perty which,  as  the  law  was  when 
the  contract  was  made,  might  have 
been  taken  or  applied  in  satisfac- 
tion of  his  demand,  is  within  the 
prohibition  of  paragraph  3,  section 
7,  Article  IV,  of  the  Constitution 
of  New  Jersey,  which  prohibits 
the  legislature  from  passing  any 
law  "depriving  a  party  of  any 
remedy  for  enforcing  a  contract 
which  existed  when  the  contract 
was  made."  But  the  legislature 
may  make  laws  incidentally  affect- 
ing the  pursuit  of  remedies  for 
enforcing  existing  contracts,  such 
as  regulating  the  admission  of  evi- 


574 


INDEX. 


dence,  the  course  of  practice,  and 
similar  acts,  altering  in  mere  mat- 
iters  of  form  the  means  of  rt^alizing 
tlie  l)enetiis  of  a  contract,  leaving 
'the  substance  of  the  remedy  un- 
affected, lb. 

'6.  The  right  to  recover  costs  is  no 
part  of  the  remedy  which  inheres 
in  the  contract.  That  light  is 
purely  incidental,  and  depends  on 
the  state  of  the  law  when  the  suit 
is  determined.  Until  judgment 
pronounced,  the  right  to  costs  does 
not  become  vested.  The  legisla- 
ture may,  after  contract  made  and 
even  pending  suit  on  it,  constitu- 
tionally pass  laws  which  change 
ithe  costs  recoverable,  or  deprive 
the  party  of  costs.  1  b. 

7.  In  1871  a  portion  of  the  township 
of  Union  was  created  a  separate 
'  .corporation,  for  the  purpose  of 
flaying  out,  opening,  and  improving 
streets.  The  work  was  to  be  ex- 
ecuted under  the  supervision  of 
-commissioners,  who  were  author- 
ized to  borrow  money  and  issue 
•  bonds  of  the  corporation,  and  to 
cause  assessments  to  be  made  on 
.lands  benefited,  to  defray  the  ex- 
.p enses.  In  1872  the  act  of  incor- 
cporation  was  repealed.  By  the 
^a■epealing  act  it  was  provided,  that 
the  repeal  should  not  affect  or  im- 
;pair  any  legal  contract  of  the  com- 
imissioners,  or  any  indebtedness 
>contr;icted  for  improvements,  and 
the  township  committee  of  the 
township  of  U.  was  autliorized  to 
■compromise  or  complete  such  con- 
rtracts,  and  to  issue  township  bonds 
to  provitie  funds  therefor,  and  to 
make  and  collect  assessments  to 
pay  expenses,  in  the  same  manner 
as  the  commissioners  had  been 
empowered — Held,  that  the  repeal- 
ing act  was  constitutional,  as  affect- 
ing a  creditor  who  had  furnished 
supplies  to  the  commissioners  be- 
fore the  repeal,  although  an  action 
for  the  same  was  pending  when 
the  repealer  became  a  law.         lb. 

S.  The  act  for  the  collection  of  de- 
mands against  ships,  steamboats, 
and  other  vessels,  [Nix.  Dig.  576,) 
does  not  conflict  with  the  constitu- 
.tion  of  New  Jersey,  by  violating 


the   right   of  trial   by  jury.     Ed- 
wards et  ul.  V.  Elliott,  449 

9.  A  statute  which  simply  prohibits 
non-residents  on  board  a  vessel 
from  subverting  the  soil  of  the 
state  and  carrying  away  her  pro- 
perty and  that  of  her  grantees, 
leaving  such  vessel  free  to  pass 
and  repass,  and  go  whithersoever 
those  in  charge  of  lier  desire,  is 
not  a  regulation  of  commerce  with 
foieign  nations  or  among  the  states. 
llaneif  and  Scattergood  v.  Chmplon, 

507 

10.  Such  a  statute  is  for  the  protec- 
tion of  property,  and  is  at  most  an 
internal  police  regulation  entirely 
within  the  competency  of  the  state 
to  adopt.  lb. 

11.  A  statute  of  this  sta,te  prohibiting 
citizens  of  another  state  from  com- 
ing upon  the  lands  under  water 
belonging  to  the  state,  and  subvert- 
ing the  soil  and  interfering  with 
the  property  there  found,  is  not 
a  violation  of  that  clause  of*  the 
constitution  of  the  United  States 
which  ordains  that  the  citizens  of 
each  state  shall  be  entitled  to  all 
the  privileges  and  immunities  of 
citizens  of  the  several  states.       lb. 

12.  When  the  proceeding  is  in  rem 
against  property  in  a  foreign  juris- 
diction, found  in  the  possession  of 
the  owner  or  his  agent,  and  in  use 
for  an  unlawfid  purpose  which 
carries  a  forfeiture  of  the  .same, 
the  seizure  thereof  without  judicial 
process  first  issued,  preparatory  to 
regular  trial  and  condemnation,  is 
not  a  deprivation  of  property 
without  due  process  of  law.         lb. 


CONSTRUCTION 
STATUTES. 


OF 


1.  Where,  under  the  sixty-ninth  sec 
tion  of  the  charter  of  Jersey  City 
the  power  is  given  to  the  board  of 
public  works  "  to  purchase  sitej 
for,  and  purchase  or  construct  t 
city  hall,  school-houses,  engine- 
house.s,  &c.,  and  such  other  build- 
ings as  may  be  necessary  for  the 
purposes  of  this  act,  &c." — Held, 


INDEX. 


575 


1.  That,  the  legislature  did  not  in 
tend  by  these  provisions  to  invest 
the  board  of  public  works  with  an 
arbitrary  or  unlimited  power  to 
purchase  either  land  or  buildings. 
/Stale,  Gregory  et  al...  pros.,  v.  Mayor 
and  Aldermen  of  Jersey  City,  166 
"2.  Every  lawful  exercise  of  this 
power  to  purchase  laud,  necessarily 
involves  the  determination  by  the 
board  of  two  things:  first,  that 
some  particular  building  is  neces 
sary ;  second,  the  quantity  of  land 
required  as  a  site  for  such  build- 
ing, lb 

3.  A  resolution  of  said  board  to 
purchase  a  tract  of  about  nine 
acres  of  land,  "to  be  used  as  a  site 
fur  the  location  of  a  city  hall  and 
other  city  buildings,"  is  unauthor- 
ized, for  there  is  no  determination 
of  the  board  that  so  large  a  tract 
is  needed  for  the  location  and 
proper  use  of  a  city  hall,  and  the 
juilgment  of  the  board  really  was, 
that  the  tract  was  sufficient  not 
only  for  a  city  hall,  but  for  other 
city  buildings.  lb. 

4.  The  legislature  did  not  intend  to 
■confer  on  the  board  of  public 
works  the  power  to  purchase  a 
site  or  sites  for  buildings  not  desig- 
nated or  even  known.  lb 

2.  The  effect  of  a  repealing  clause 
upon  a  previous  statute,  which 
confers  a  special  jurisdiction,  is  to 
end  all  proceedings  under  it  which 
are  not  closed,  unless  there  be  an 
exception  in  the  repealing  statute. 
State,  Copeland,  pros.,  v.  Village  of 
Passaic,  382 

3.  Where  commissioners  »re  ap- 
pointed to  asse-'S  damages  for 
opening  streets,  &c.,  and  a  new 
act  is  passed  substituting  a  new 
method  of  procedure,  giving  an 
appeal  to  other  commissioners  to 
be  appointed  by  a  justice  of  the 
Supreme  Court  and  repealing  the 
former  act  without  exception,  an 
appointment  of  commissioners  for 
review  under  the  substituted  law, 
will  be  irregular.  lb. 

4.  Such  irregularity  may  be  cured  as 
well  by  a  subsequent  statute  as  by 
a  saving  clause  in  the  repealing 
act.  lb. 


5.  When  the  subsequent  act  remedies 
all  defective  assessments,  where  they 
were  properly  made  in  proportion 
to  the  benefits  received,  if  it  ap- 
pears that  the  party  assessed  had 
no  notice,  was  not  present,  or  had 
no  opportunity  of  being  heard  be- 
fore the  commissioners,  it  will  not 
be  assumed,  in  the  absence  of 
proof,  that  such  person  was  prop- 
erly ;issessed  in  proportion  to  the 
benefits  received,  although  the 
commissioners  do  so  report.       lb. 

6.  Under  this  charter,  the  entire  as- 
sessment may  be  set  aside,  and 
new  commissioners  appointed  to 
re-assess  the  damages.  Jb. 

7.  Where  by  the  act  of  March  26th, 
1872,  constituting  a  board  of  com- 
missioners of  highways  of  the 
township  of  Cranford,  to  consist 
of  five  persons,  freeholders  and 
residents  in  the  township,  for  the 
purpose  of  laying  out,  &c.,  public 
roads,  it  was  provided  by  section 
3,  that  the  said  commissioners 
should  be  elected  by  the  legal 
voters  in  the  township,  at  the  next 
annual  town  meeting  after  the 
passage  of  the  act,  and  in  the 
same  manner  in  which  the  other 
officers  of  the  said  township  are 
elected ;  four  of  them  were  to  be 
elected  from  the  four  road  dis- 
tricts of  the  township,  and  one 
elected  at  large,  from  any  road 
district,  as  president  of  the  board, 
and  every  two  years  there  was  to 
be  an  election  at  the  annual  town 
meeting,  and  if  a  vacancy  occur- 
red by  death  or  a  commissioner 
becoming  a  non-resident,  the  town- 
ship committee  was  authorized  to 
fill  it;  and  at  the  first  election 
Cox  and  Crane  each  received  the 
same  number  of  vot-es  for  commis- 
sioner at  large,  and  thereupon  the 
town  committee  unanimously  elec- 
ted Cox  as  president  of  the  board. 
Held,  that  the  election  of  Cox  was 
legal,  it  having  been  in  the  man- 
ner as  other  township  oflicers,  and 
the  action  was  warranted  by  the 
relation  of  the  act  of  1872,  to  the 
act  of  1860,  (iVix.  Big.  992,)  in 
regard  to  the  manner  of  election. 
State,  Williams,  pros.,  v.  Crane, 
Collector,  &c.,  394 


576 


INDEX. 


ONTEACT. 

1.  A  promise  to  pay  "all  liibilities" 
of  a  manufacturer,  in  considera- 
tion of  a  sale  and  trtnsUVr  of  all 
the  property  and  assets,  will  in 
elude  a  disputed  claim  for  ti>e 
salary  of  the  foreman  of  the  fac- 
tory. Joslin  V.  New  Jersey  Car 
Spring  Co.,  141 

2.  An  action  may  be  maintained  on 
a  written  promise  made  by  the  de- 
fendant to  a  third  person,  for  the 
benefit  of  the  plaintiif,  without 
any  consideration  moving  from 
the  plaintiff  to  the  defendant.     lb. 

3.  A  sale  of  coal  as  soon  as  it  is  de- 
livered from  the  mines,  upon  a 
stipulation  that  it  is  not  to  bind, 
if  the  coal  company  do  not  deliver 
it  according  to  a  certain  proposal, 
which  is  to  sell  five  hundred  tons 
or  more  for  immediate  delivery, 
for  a  fixed  price,  and  at  a  certain 
place,  is  conditional  and  mutual 
Neldon  v.  Smith,  148 

4.  If  coal  is  received  from  the  mines 
after  the  time  named  in  the  con 
tract,  tJie  seller  is  not  bound  to  de- 
liver it,  nor  is  the  buyer  bound  to 
receive  it.  The  buyer  has  not  an 
option  to  take  it  for  the  price 
named  in  the  contract.  Jb. 

5.  The  term  "immediate  delivery," 
explained  to  mean,  among  coal 
shippers  and  dealers,  a  delivery 
within  the  present,  or  in  some 
cases,  the  succeeding  month,  and 
thus  interpreted   in  this  contract. 

lb. 

6.  Where  coal  was  accepted  by  the 
seller,  by  a  parol  agreement  with 
the  company  after  the  breach,  and 
in  settlement  of  damages  claimed 
for  the  breach — Held,  to  be  by  way 
of  accord  and  satisfaction,  and  not 
a  delivery  under  the  former  con- 
tract, lb. 

7.  The  plaintiff  made  an  agreement 
with  the  defendant  to  let  him  take 
the  sand  out  of  a  pit  fifty  feet  wide, 
the  entire  length,  for  the  sum  of 
$650,  and  gave  him  one  year's 
time  to  take  it  out ;  the  agreement 


was  signed  by  the  plaintifi',  and 
not  by  the  defendant.  Held,  that 
the  agreement  was  for  the  sale  of 
an  interest  in  land,  and  not  hav- 
ing been  signed  by  the  defendant, 
is  as  to  him,  by  fr>rceof  the  statute 
of  frauds,  void.  O'Donnel  ads.  Bre- 
hen,  257 

8.  A  statement  in  a  contract  of  sale, 
descriptive  of  the  thing  sold,  if 
intended  to  be  part  of  the  con- 
tract, is  a  condition,  on  the  failure 
of  which  the  purchaser  may  repu- 
diate, or,  if  a  rescission  iias  become 
impossible,  it  may  be  treated  as  a 
warranty,  for  the  breach  of  which 
damages  may  be  recovered.  Wol- 
cott,  Johnson  &  Co.  v.  Mount,     262 

9.  It  is  a  question  of  fact,  to  be  deter- 
mined from  all  the  circumstances 
of  the  case,  whether  a  representa- 
tion, descriptive  of  the  article  sold 
by  a  name  by  which  it  is  known 
in  the  market,  is  an  expression  of 
judgment  or  opinion  only,  or  wa* 
intended  as  a  warranty.  lb. 

10.  Loss  of  profits  may  be  recovered 
as  damages  for  the  non-perform- 
ance of  a  contract,  if  the  loss  re- 
sults directly  from  the  breach  of 
the  contract  itself,  or  is  such  as 
might  be  reasonably  supposed  to 
have-been  in  the  contemplation  of 
both  parties  at  the  time  of  the 
making  of  the  contract,  as  the 
result  of  non-performance;  pro- 
vided that  the  profits  to  be  com- 
pensated for  are  such  as  are  capa- 
ble of  being  ascertained  by  the 
rules  of  evidence,  to  a  reasonable 
degree  of  certainly.  lb. 

11.  The  measure  of  damages  in  ac- 
tions on  contract  considered.      lb. 

12.  M.,  a  market  gardener,  applied 
to  W.  &  Co.,  merchants,  who  kept 
agricultural  seeds  for  sale,  for 
"  early  strap-leafed  red-top  tur- 
nip seed."  W.  showed  him  the 
seed  wliich  he  said  was  that  kind, 
and  sold  it  to  him  as  such.  M. 
informed  W.,  at  the  time  of  the 
purchase,  that  he  wanted  that  kind 
of  seed  to  raise  a  crop  fur  the  early 
market.  M.  sowed  the  seed,  and 
it  turned  out  to  have  been  another 


INDEX. 


577 


kind  of  turnip  seed,  of  an  inferior 
quality.  The  representation  was 
made  in  good  faitli,  W.  &  Co.  hav- 
ing purchased  the  seed  as  early 
«trap-leafed  red-top  turnip  seed. 
In  an  action  for  breach  of  war- 
ranty— Held  on  certiorari — 

1.  That  the  question  wliether  the 
statements  were  merely  an  expres- 
sion of  opinion  or  a  warranty,  was 
one  of  fact  in  the  court  below,  and 
the  evidence  tending  to  show  that 
a  warranty  was  made,  the  finding 
could  not  be  reviewed.  I 

2.  That  the  measure  of  damage 
was  the  difference  between  the 
market  value  of  the  crop  raised' 
and  the  same  crop  from  the  seed 
ordered.  1  b. 

13.  An  agreement  by  a  railroad  com- 
pany to  carry  goods  for  certain 
persons,  at  a  cheaper  rate  than 
they  will  carry  under  the  same 
conditions  for  others,  is  void  as  cre- 
ating an  illegal  preference.  Mes- 
senger et  al.  V.  Pennsylvania  R.  £,. 
Co.,  407 

14.  The  foundation  of  the  right  of 
action  to  recover  a  bounty  offered 
for  volunteers,  is  the  contract  con- 
cluded by  the  offer  on  the  one 
side,  and  its  acceptance  by  the 
other,  supported  by  the  considera- 
tion which  results  from  the  per- 
formance of  the  stipulated  service, 
on  the  faith  of  the  promise  con- 
tained in  the  offer.  Mayor,  (fee,  of 
Hoboken.  v.  Bailey,  490 

15.  To  make  a  contract  there  must 
be  mutual  assent,  or  an  offer  by 
one  party  and  consent  by  the  other. 
There  cannot  be  consent  lu  an 
offer  so  as  to  make  a  contract, 
when  a  party  has  no  knowledge  of 
the  offen-.  lb. 

See  Executory  Contract. 


CONTEIBUTORY   NEGLI- 
GENCE. 

A  non-suit  is  proper  when  from  the 
plaintiff's  own  showing,  it  clearly 
appears  that  he  contributed  by  his 
own  carelessness  to  the  happening 
of  the    accident   from   which    lie 


received   damages.      Pennsylvania 
B.  B.  Co.  V.  Matthews,  631 


CORPORATION. 

1.  Corporations  being  the  creatures 
of  legislation,  are  precisely  what 
their  organic  act  makes  them.  For 
every  function  they  claim  to  ex- 
ercise, they  must  find  authority  in 
legislative  grant.  Watson  v.  Ac- 
quackanonck  Water  Company,     195 

2.  A  corporation,  being  the  plaintiff 
in  the  suit,  need  not  prove  its  cor- 
porate existence  under  a  plea  of 
the  general  issue,  or  other  plea  to 
the  merits.  Star  Brick  Company 
V.  Bidsdale,  229 

3.  A  fire  insurance  company  cannot 
be  established  in  Jersey  City  in- 
stead of  Trenton,  under  a  charter 
for  such  company  to  be  located  in 
Trenton.  It  is  a  perversion  of,  and 
a  fraud  upon,  the  act,  and  gives  no 
corporate  color  to  the  company  for 
the  protection  of  those  who  were 
engaged  in,  or  lent  themselves 
knowingly  to  the  scheme.  Such 
an  organization  in  Jersey  City  is 
entirely  outside  of  the  act,  and 
has  no  existence  as  a  corporation, 
real  or  de  facto.  Booth  ads.  Won- 
derly,  250 

COSTS. 

The  spirit  of  the  maxim,  "  Victu.3 
victori  in  expensis  condemnandus 
est,"  has  for  many  years  prevailed 
in  our  courts.  Stale,  Brittin  et  al., 
V.  Blake  et  al.,  443 

See  Constitution  and  Constitu- 
tionaIj  Law,  6. 


COUNTY  COLLECTOR. 

1.  A  county  collector  is  not  required 
or  permitted,  by  the  "act  to  estab- 
lish a  system  of  public  instruc- 
tion," (Nix.  Dig.  878,  g  75,)  to  ex- 
ercise any  discretion  as  to  how 
much  of  the  state  appropriation 
the  several  township  collectors  in 
the  county  are  entitled  to  receive 
from  him.     That  question  as  b©- 


678 


INDEX. 


tween  these  officers,  is  settled  con 
clusively  by  the  order  of  the  coun 
ty  siiperinteiulent  of"  public  scliools. 
State,  Herder,  Collector  of  Amwelt, 
V.  Collector  of  Hunterdon,  363 

2.  The  notion  that  a  county  collector 
can,  in  any  case,  lawfully  reduce 
the  amount  by  setting  up  some 
counter  claim,  whether  in  his  own 
behalf  or  in  belialf  of  his  county, 
and  whether  against  the  township 
collector,  personally,  or  against 
his  township,  is  neither  justified 
by  the  language  nor  consistent 
with  the  policy  of  our  school 
laws.  lb- 


CRIMINAL  EVIDENCE. 

1.  The  defendant,  on  an  indictment 
for  extortion  in  taking  fees  to 
which  he  was  not  entitled,  has  the 
right  to  prove  to  the  jury  that  the 
moneys  which  it  was  charged  he 
took  extorsively,  were  received  by 
him  under  a  mistake  as  to  his 
legal  rights.     Cutter  ads.  State,  125 

2.  On  the  trial  of  an  indictment  forj 
an  attempt  to  ravish,  a  complaint' 
made  soon  after  the  assault,  by  the| 
woman  assaulted,  is  admissible  in 
evidence.     State  v.  Ivins,  233 

3.  The  particulars  of  the  transaction, 
as  detailed  by  the  prosecutrix,  are 
not  legal   evidence  on  such  trial. 

lb. 


CRIMINAL  PRACTICE  AND 
PLEADING. 

Regularly  a  bill  of  exceptions 
should  be  drawn  up  and  sealed 
during  the  trial.  The  practice  has 
been  for  the  judge  on  the  excep- 
tions being  taken  and  a  minute 
thereof  made,  to  grant  time  for 
the  preparation  of  a  formal  bill  of 
exceptions,  and  if  the  bill  be  pre- 
sented within  a  reasonable  time, 
to  affix  his  seal  to  it;  when  this  is 
done,  it  relates  back  as  if  the  bill 


was  sealed  at  the  trial.     State  v. 
Holmes,  62" 

See  Indictment. 


CRIMES  AND  CRIMINAL   IN- 
TENT. 

1.  The  mere  taking  of  an  illegal  fee- 
by  a  justice  of  the  peace  or  other 
officer  of  this  state,  will  not  con- 
stitute a  criminal  act,  under  tiie- 
twenty-eighth  section  of  the  act 
for  the  punishment  of  crimes,  [Nix. 
Dig.  197,)  without  regard  to  the 
intent  of  the  recipient.  Cutter  ads. 
Stale,  125- 

2.  The  legal  maxim,  ignorantia  legia 
neminem  ezcusat,  if  enforced,  where- 
the  law  is  not  settled,  or  is  obscure, 
and  where  the  guilty  intention, 
being  a  necessary  constituent  of 
the  particular  offence,  is  depend- 
ent on  a  knowledge  of  the  law, 
would  be  misapplied.  lb. 


DAMAGES. 

1.  In  an  action  to  recover  damages- 
from  flowage  by  back  water,  a  re- 
quest to  charge  that  a  dam  which 
had  been  in  existence  for  forty 
years,  was  a  legal  structure,  was 
properly  refused,  where  there  was 
some  question  whether  its  mainte- 
nance had  been  peaceably  acqui- 
esced in.  The  court  should  have 
been  asked  to  leave  to  the  jury 
the  question  whether  the  dam  had 
been  maintained  for  the  prescrip- 
tive period,  under  such  circum- 
stances as  to  give  a  right  by  pre- 
scription. Trenton  Water  Power 
Co.  V.  Raff,  335- 

2.  Immunity  from  liability  to  actions 
from  injuries  resulting  to  indi- 
viduals from  acts  done  under  leg- 
islative autliority,  extends  only  to 
such  injuries  as  arise  incidentally 
from  acts  done  under  a  valid  act 
of  the  legislature,  by  persons  act- 
ing with  due  skill  and  cautioH' 
within  the  scope  of  their  author- 


INDEX. 


syg* 


ity,  in  the  execution  of  a  public 
trust  for  the  public  benefit.         Ih. 

3.  An  action  will  lie  to  recover  dam 
ages  for  an  injury  to  property  in 
the  execution  of  work  under  legis 
lative  authority,  if  the  injury  be 
direct,  or  the  work  done  for  the 
benefit  of  an  individual  or  corpo- 
ration with  private  capital,  and  for 
private  emolument,  even  though 
the  public  be  incidentally  bene- 
fited by  it.  lb. 

4.  An  act  of  the  legislature,  author- 
izing one  to  erect  a  dam  in  a  river 
which  is  a  public  highway,  may 
be  a  justification  so  far  as  public 
interests  are  concerned,  but  will 
be  no  justification  for  a  private 
injury,  caused  by  the  overflow  of 
lands  of  an  individual  proprietor. 

lb. 

See  Kailroac,  2. 


DECLAEATION  OF  SALE. 

1.  The  act  of  1869,  which  extends  the 
provisions  of  the  second  section  of 
the  act  of  March  25th,  1865,  [Nix. 
Dig.  865,)  to  deeds  and  declara- 
tions of  sale  under  public  or  muni- 
cipal authority,  establishes  a  rule 
of  evidence  giving  to  the  recitals 
the  efiect  of  proof,  and  prescribing 
the  kind  of  evidence  which  shall 
be  admitted  to  disprove  the  truth 
thereof.  The  only  evidence  com- 
petent for  that  purpose  is  the  adju- 
dication of  the  court  to  that  effect 
on  certiorari  to  review  the  proceed- 
ings on  wliich  tlie  title  is  based. 
State,  Baxter,  pros.,  v.  Mayor  and 
Aldermen  of  Jersey  City,  188 

2.  Relief  on  certiorari  being  substi- 
tuteil  for  tlie  defence  the  owner 
might  previously  have  made  in 
ejeetuient,  the  wiit  may  be  sued 
out  at  any  time;  but  when  prose- 
cuted for  such  puriiose,  will  bring 
up  for  review  only  such  objections 
as  would  previously  have  been  I 
available  in  an  action  of  ejectment.! 

lb. 


DECREE  IN  EQUITY. 

A  decree  of  the  Court  of  Chancery, 
that  a  sheriff"'s  deed  should  become 
void,  and  the  purchaser  reconvey 
on  the  payment  to  hiiu  of  a  certain 
sum  within  a  specified  time,  is  not 
such  a  decree  as  becomes  a  con- 
veyance by  force  of  the  fifty-sixth, 
section  of  the  chancery  act ;  and 
an  unaccepted  tender  of  tlie  sum 
named,  after  the  day  fixed,  and 
after  ejectment  brought  to  recover 
possession  under  the  deed,  will  not 
extinguish  the  deed  as  a  security^ 
and  enable  the  defendant  to  de- 
fend under  the  decree.  Kloepping' 
and  wife  v.  Stellmacher,  111 


DEDICATION. 

1.  Ejectment  will  lie  at  the  suit  of  an 
incorporated  city,  for  lands  dedi- 
cated to  a  public  use  for  a  street. 
Hoboken  Land  and  Improvement 
Company  v.  Mayor,  &c.,  of  Hobo- 
ken, 540' 

2.  Acceptance  of  a  dedicated  street 
by  a  formal  act  or  public  user,  is 
not  essential  to  cut  ofi^  the  owner 
from  the  power  of  retraction,  and 
subject  the  dedicated  lands  to  the- 
public  use,  wlien  in  the  judgment 
of  the  local  authorities  the  wants 
or  convenieuce  of  the  public  re- 
quire it  for  that  purpose.  /6. 

3.  A  street  delineated  on  a  dedicating 
map  as  extending  to  a  public  navi- 
gable river,  will  be  continued  to 
the  new  water  front  obtained  by- 
filling  in  by  the  owner,  under 
legislative  permission.  lb.. 

4.  An  ordinawce  of  the  municipal 
government  adopting  a  part  of  a 
public  street  for  present  use,  is  not 
an  abandonment  of  the  rest  of  it. 

lb, 

5.  The  local  corporate  authorities- 
have  no  power  in  the  absence  of 
legislative  authority,  to  release  the 
public  right  in  a  dedicated  street. 

lb. 

6.  Lapse  of  lime,  however  long  the 


580 


INDEX. 


public  right  in  a  street  is  suspend- 
ed, though  coupled  with  an  user 
by  tlie  owner,  which  would  other- 
wise be  adverse,  will  not  make 
title  by  prescription  against  the 
public.  Ib.\ 

7.  The  legislature  alone  has  the 
power  to  release  the  dedicated! 
lands  and  discharge  the  public 
servitude.  lb. 

8.  An  act  of  the  legislature  incor- 
porating a  land  and  improvement 
company,  and  authorizing  it  to  fill 
up,  occu(>y,  possess,  and  enjoy  all 
land  covered  with  water,  fronting 
and  adjoining  lands  that  might  bei 
owned  iiy  the  corporation,  and  to 
construct  thereon  wharves,  piers.l 
slips,  and  other  structures  for  com-i 
mercial  and  shipping  purposes, 
•will  not  extinguish  the  public  right 
of  access  to  the  navigable-  waters 
by  a  street  on  land  purchased  by 
the  company,  which,  by  the  dedi- 
cation, terminated  at  the  high 
water  line,  as  it  was  when  the 
<iedication  was  made  ;  but  the  con 
nection  of  tlie  street  with  the  navi- 
gable waters  will  be  continued 
over  lands  reclaimed  by  filling  in 
under  .'■uch  legislative  permission. 

lb. 

9.  The  owner  of  lands  on  tide  waier, 
by  a  map  filed  in  1805,  dedicated 
streets  and  squares  to  a  public  use. 
In  1838  the  defendants  were  in- 
corporated as  a  land  and  improve- 
ment company,  in  1839  tliey  ac- 
quired title  in  fee  to  the  tract 
through  wnich  the  dedicated 
streets  were  laid.  By  the  charter, 
the  company  was  authorized  to  fill 
up,  occupy,  possess,  and  enjoy  all 
land  covered  with  water,  fronting 
ivnd  adjoining  lands  that  might  be 
owned  by  the  corporation,  and 
construct  thereon  wharves,  &c., 
■with  proviso  that  it  should  not  be 
lawful  to  fill  in  or  construct  any 
wharf,  &c.,  immediately  in  fiont 
of  lands  of  any  other  person  own- 
ing to  the  water,  without  consent 
in  writing.  In  the  map  of  dedica- 
tion. Fourth  street  was  delineated 
as  terminating  at  the  water,  and  it 
was  found  by  the  jury  that  the 
dedication  was  to  high  water,  as  it 


was  when  the  map  was  made.  The 
company  filled  in  a  considerable 
distance  beyond  that  line.  In  1857 
the  city  )ia.ssed  an  ordinance  that 
Fourth  street  should  extend  be- 
tween certain  limits  short  of  the 
original  line  of  high  water.  The 
delendants  cuntinued  in  possession 
of  the  rest  of  the  street  until  this 
action  was  brought  in  1870.  In 
ejectment  by  the  city  for  that  part 
of  the  dedicated  street — Held,  that 
the  street  was,  by  operation  of  law, 
extended  to  the  new  water  front 
obtained  by  filling  in,  and  that  the 
public  right  of  access  to  the  water 
had  not  been  abandoned  or  lost  by 
lapse  of  time,  or  released.  lb. 


DEED. 

.  A  copy  of  the  record  of  a  deed  of 
conveyance  has  the  same  eflect  as 
evidence  as  the  deed  itself;  and  in 
the  absence  of  such  deed,  it  is  not 
competent  to  show,  in  a  trial  at 
law,  that  such  a  copy  is  not  a  true 
transcript  of  the  deed.  Sisson  v. 
Donnelly,  432 

.  The  statute  puts  the  copy  from  the 
record  on  the  same  level  with  the 
deed  itself,  and  if  by  mistake  any- 
thing has  been  omitted  from  the 
record,  the  mistake  must,  if  the 
deed  be  lost,  be  rectified  in  a  court 
of  equity.  lb. 

.  A  copy  of  the  record  of  a  convey- 
ance purported  to  convey  a  life 
estate — Held,  that  on  the  trial  at 
law  it  was  not  competent  to  show 
by  circumstances,  that  it  was  to  be 
inferred  that  the  deed  itself,  which 
had  been  lost,  contained  words  of 
inheritance  so  as  to  make  the  es- 
tate a  fee  simple.  lb. 

.  Where  technical  words  are  not  re- 
quired, a  deed  of  conveyance,  like 
all  other  instruments,  will  be  read 
by  the  court  in  the  sense  of  the 
meaning  of  the  parties.  lb. 

.  In  a  tripartite  deed,  which  con- 
veys the  estate  to  the  party  <;f  the 
second  part,  when  it  was  clearly 
manifest  that  the  intention  was  to 


INDEX. 


581 


convey  to  the  party  of  the  third 
part,  and  that  tliere  was  a  mistake 
in  the  designation  of  the  grantee 
— Held,  the  intention  being  clear, 
that  the  proper  correction  could 
be  made  by  construction,  and  tliat 
the  estate  was  vested  in  the  party 
of  the  third  part.  lb. 


DESCENT. 

The  rule  of  the  common  law  that 
inheritances  sh'all  not  lineally  as- 
cend, although  modified  so  as  to 
let  in  the  fatlier,  and  to  some  ex- 
tent the  mother,  has  not  been 
abolished  in  this  slate,  and  there- 
fore a  grandmotlier  is  not  entitled, 
by  virtue  of  the  sixth  section  of 
the  statute  of  descents,  to  iniierit 
lands  of  which  the  grandchild 
died  seized.     Bray  v.  Taylor,     415 


DEVISE. 

].  Where  lauds  are  devised  in  the 
first  instance  in  language  indeter- 
minate as  to  the  quantity  of  the 
estate  from  whicli  an  estate  for 
life  would  result  by  implication, 
and  words  adapted  to  the  creation 
of  a  power  of  disposal  without 
restriction  as  to  the  mode  of  exe- 
cution are  added,  the  construction 
will  be  that  an  estate  in  fee  is 
given  ;  but  where  the  quantity  of 
the  estate  is  expressly  defined  to 
be  for  life,  the  superadded  words 
will  be  construed  to  be  a  mere 
power.  The  distinction  is  between 
a  devise  expressly  for  life,  with  a 
power  of  disposition  annexed,  and 
a  devise  in  general  terms  with 
such  a  power  annexed ;  in  the  for- 
mer case  an  estate  for  life  only 
passes,  in  the  latter  a  fee.  Downey 
V.  Borden,  46u 

■2.  The  testator,  by  his  will,  gave  his 
real  and  personal  estate  to  his 
widow  in  general  terms,  and  by  a 
subsequent  clause  he  gave  and 
bequeathed  to  her  one-third  of  all 
his  estate,  "  that  may  remain  at 
the  time  of  her  death  for  to 
dispose  of  as  siie  may  see  proper. ' 


The  remaining  two-thirds,  after 
certain  specific  bequests,  he  di- 
rected to  be  divided  in  equal 
shares  among  his  sisters  and  the 
heirs  of  a  deceased  brother.  Held, 
that  the  widow  took  an  estate  in 
fee  simple  in  the  one-third  of  the 
lands.  lb. 


DISTRIBUTION,  DECREE  FOR. 

Unless  the  decedent  dies  intestate, 
there  can  be  no  decree  for  distri- 
bution.     Ordinary  v.  Barcalow,  15 


DRAINAGE. 

1.  An  assessment  made  by  the  de- 
fendants as  managers  under  an  act 
approved  April  1st,  1868,  enabling 
the  owners  of  certain  swamps  and 
marsh  lands  to  diain  the  same, 
having  been  affirmed  on  ceriioran 
by  the-Supreme  Court  as  to  all  the 
prosecutors  excepting  B,  who  had 
leave  to  apply  to  the  court  to  have 
the  assessment  against  him  cor- 
rected, the  assessment  to  stand  in 
case  he  failed  to  apply  within  a 
limited  time,  and  judgment  after- 
wards entered  against  B.  and  the 
other  for  costs — Held,  that  there 
was  no  error  in  this,  the  necessary 
inference  from  the  record  being 
either  that  B.  had  failed  to  apply 
within  the  time,  or,  that  having 
applied,  no  correction  was  found 
necessary.  Slate,  Brittin  et  al.,  v. 
Blake  et  al.,  442 

2.  There  was  no  error  in  holding  the 
act  which  authorized  the  assess- 
ment to  be  valid,  although  it  pro- 
vided for  no  appeal  from  the  deci- 
sions of  the  managers.  lb. 

The  constitutional  restriction  of 
taking  private  property  without 
compensation,  is  confined  to  a  sin- 
gle branch  of  the  legislative 
authority,  the  right  of  eminent 
domain,  and  has  no  application  to 
an  assessment  made  under  the 
police   powers  of  the   legislature. 

lb. 


582 


INDEX. 


4.  The  validity  of  the  assessment  was 
not  affected  by  the  subsequent 
repeal  of  the  act  which  authorized 
it.  lb. 


DUPLICATE. 
See  Board  op  Assessors. 


EJECTMENT. 

Ejectment  will  lie  at  the  suit  of  an 
incorporated  city,  for  lands  dedi- 
cated to  a  public  use  for  a  street. 
Hoboken  Land  and  Improvement  Co. 
V.  Mayor,  &c.,  of  Hoboken,  5-40 


See  Process,  1. 


ERIE  RAILWAY  COMPANY. 

1.  The  act  entitled  "  An  act  relating 
to  taxes  to  be  paid  by  the  Erie 
Railway  Company  for  certain  pro- 
perty owned,  leased,  used,  or  occu- 
pied by  it  in  this  state,"  (Laws  of 
1870,  p.  1168,)  relates  to  the  pro- 
perty of  the  Long  Dock  Company, 
used  or  occupied  by  the  said  rail- 
way company,  and  therefore  em- 
braces but  one  object,  which  is 
sufficiently  expressed  in  its  title. 
Slate,  Long  Dock  Co.,  pros.,  v. 
Saight,  54 

2.  The  act  is  to  have  efTect,  though 
it  does  not  in  terms  refer  to  the 
act  '■  relative  to  taxes  in  certain 
counties  of  this  state."  Laws  of  1869, 
p.  1225.  Jh. 


ESTRAY. 

1.  A  stolen  horse,  left  by  the  thief 
tied  to  a  post  in  a  public  road,  is 
not  an  estray  within  the  purview 
of  the  New  Jersey  statute.  Hall 
V.  Gildersleeve,  235 


2.  Nor  will  such   horse   be   bronght| 

under   the   statute,   if  the   person}  EXECUTION. 

finding   him  remove  him  and  tiel 

him  in  a  private  stable.  lb. i  The  words  "writ  of  execution,"  in 


EVIDENCE. 

1.  Questions  not  directly  relevant  to- 
the  issue,  on  cross-examination,  are 
within  the  discretion  of  the  judge, 
to  prevent  an  undue  expansion  of 
the  case  by  collateral  facts.  Jones 
V.    Mechanics   Fire   Insurance    Co., 

30 

2  When  the  record  of  a  will,  to- 
gether with  the  affidavit  at  the 
time  of  probate,  is  offered  in  evi- 
dence, it  is  competent  for  the  op- 
posing party  to  show  statements 
made  out  of  court  by  one  of  the 
subscribing  witnesses  who  had 
joined  in  such  affidavit,  in  order 
to  contradict  the  statements  of  sucii 
afiBdavit  as  to  the  due  execution 
of  the  will.  Otterson  et  al.  v.  Hof- 
ford  et  al.,  129' 

3.  Such  evidence  standing  alone  will 
not  invalidate  the  instrument.    Ih. 

4.  A  corporation,  being  the  plaintiff 
in  the  suit,  need  not  prove  its  cor- 
porate existence  under  a  plea  of 
the  general  issue,  or  other  plea  to 
the  merits.  Star  Brick  Co.  v.  Rids- 
dale,  229 

5.  On  a  trial  before  a  jury,  on  ap- 
peal from  appraisement  by  com- 
missioners of  damages  for  lands 
taken  by  a  railroad  company, 
there  is  no  inflexible  rule  which 
limits  the  period  over  which  in- 
quiry may  be  extended  as  to  the 
market  value  of  the  lands  taken. 
How  long  anterior  or  subsequent 
to  the  first  appraisement  the  in- 
vestigation may  be  carried,  must 
be  left,  in  a  great  measure,  to  the 
sound  discretion  of  the  court. 
Montclair  M.  M.  Co.  v.  Benson  et 
al.,  557 

6.  Not  admissible  to  ask  a  witness  at 
what  price  he  had  offered  for  sale 
adjoining  property.  lb. 

See  Criminal  Evidence. 


INDEX. 


583. 


the  twenty-second  section  of  the 
act  concerning  sheriffs,  apply  to 
writs  of  fieri  facias  as  well  as  to 
writs  of  capias  ad  satifaciendum 
Kemble's  Adm'rs  v.  Harris,         526 

See  Amercement. 


EXECUTOR. 

1.  A  sole  executor,  (and  of  course  if 
one,  all,)  has  the  power,  by  a  new 
promise,  to  remove  the  bar  of  the 
statute  of  limitations.  Shreve 
Joyce,  44 

2.  One  of  two  or  more  executors  can 
bind  an  estate  by  the  new  promise, 
and  it  does  not  thereby  make  the 
representatives    personally  liable. 

lb. 

3.  A  co-executor  can  no  more  be 
made  personally  liable  by  the  new 
promise  of  another  executor,  than 
in  any  other  matter  where  the 
validity  of  the  act  of  the  Individ 
ual  executor  in  binding  the  estate 
may  be  unquestioned.  The  judg- 
ment in  either  case  is  de  bonis  testa 
toris,  and  there  can  be  no  personal 
liability  except  where  the  executor 
has  made  himself  chargeable  with 
a  devastavit,  lb. 


EXECUTOR'S  BOND. 

1.  A  failure  to  settle  a  final  account 
in  the  Orphans  Court,  is  a  breach 
of  the  bond  of  an  executor,  given 
by  force  of  the  fifth  section  of  the 
supplement  of  1855  to  the  Orphans 
Court  act.     Ordinary  v.  Barcalow, 

15 

2.  The  non-payment  of  a  legacy  can- 
not he  assigned  as  a  breach  of  such 
bond,  without  showing  a  settle- 
ment of  the  executor's  account  in 
the  Orphans  Court,  and  a  balance 
in  his  hands  after  the  payment  of 
debts.  lb. 

3.  The  damages  on  the  bond  of  an 
executor  cannot  be  assessed  at  law  ; 
the  money  recovered  must  be  dis- 
tributed by  the  Ordinary.  lb. 


I      EXECUTORY  CONTRACT. 

1.  In  an  executory  contract  to  build 
a  vessel  to  be  paid  for  in  instal- 
ments, as  the  work  progresses,  the 
title  remains  in  the  builder  until 
the  work  is  completed  and  deliv- 
ered. Edwards  et  al.  v.  Elliott,   449 

2.  Where,  by  the  terms  of  the  con- 
tract, when  an  instalment  was 
paid,  the  vessel,  so  far  as  then  C(m- 
structed,  was  to  become  the  prop- 
erty of  the  puichaser — Held,  that 
the  burden  is  on  him  to  show  the 
time  of  payment,  and  that  his  title 
vested   before    the  lien    attached. 

lb. 


EXTORTION. 
See  Crimes  and  Criminal  Intent. 

FERRY. 

Three  freeholders  appointed  under 
an  act  passed  March  7th,  1839,  to 
appraise  the  damages  sustained  by 
the  defendants,  the  owners  of  a 
ferry  by  the  erection  of  the  plain- 
tiffs' bridge,  were  sworn  to  appraise 
the  damages  sustained  by  the  erec- 
tion and  use  of  the  hridge^Held, 
that  the  aflSdavit  was  good,  and 
not  at  variance  with  the  true  sense 
of  the  act — Held,  further,  that  the 
freeholders  were  not  restricted  by 
the  act  to  such  information,  as 
they  could  obtain  from  their  own 
view  and  examination  of  the  prop- 
erty to  be  appraised,  but  were  left 
free  to  determine  for  themselves, 
not  only  what  information  they 
would  need,  but  how  and  from 
what  source  they  would  obtain  it 
— the  rules  which  govern  the  ad- 
missibility and  effect  of  evidence 
in  courts,  having  no  application  to 
such  proceedings.  Columbia  Dela- 
ware Bridge  Co.  v.  Geisse,  53T 


HIGHWAYS. 
See  Railroad,  1,  2. 


684 


INDEX. 


HUSBAND  AND  WIFE. 

1.  A  husband  may  permit  a  wife  to 
labor  for  lierself,  and  appropriate 
to  lier  own  use  the  avails  of  her 
labor,  and  may  give  to  her  or 
allow  her  to  appropriate  to  her 
own  use  the  proceeds  of  her  own 
labor  when  received  by  her.  Peter- 
son and  Wife  v.  Mulj'ord,  481 

2.  Such  permission  or  gift  is  good 
against  the  creditors  of  the  hus 
band,  if  such  proceeds  have  not 
actually  been  reduced  into  his 
possession.  lb. 


ILLEGAL  PREFERENCE. 
See  Contract,  13. 


INDICTMENT. 

1.  When  the  charge  in  an  indictment, 
stripped  of  technical  language,  is, 
tliat  the  defendants  used  steam  en- 
gines and  caused  them  to  pass  over 
their  road,  which  engines  emitted 
sparks  and  thereby  set  fire  to  the 
adjoining  houses  and  herbage,  and 
there  is  no  allegation  of  any  negli- 
gence or  want  of  care  or  skill  on 
the  part  of  the  defendants — Held, 
that  the  language  of  the  indict- 
ment cannot  be  extended  by  infer- 
ence or  implication,  and  it  cannot 
be  intended  that  due  skill,  care, 
and  diligence  were  not  exercised 
by  the  defendants  in  the  selection 
and  construction  of  their  engines, 
or  that  there  was  any  negligence 
or  want  of  care  in  their  use.  Mor- 
ris and  Essex  R.  R.  Co.  v.  Slate, 

553 

2.  A  mere  allegation  in  an  indict- 
ment that  certain  facts  charged 
are  to  the  common  nuisance  of  all 
the  citizens  of  the  state,  will  not 
make  it  a  good  indictment  for  a 
common  nuisance,  unless  the  facts 
-charged  be  of  such  a  nature  as 
may  justify  that  conclusion  as  one 
•of  law  as  well  as  of  fact.  lb. 


INSURANCE. 

1.  To  comply  with  the  condition  of  a 
fire  policy,  requiring  as  particular 
an  account  of  the  loss  and  damage 
as  the  nature  of  the  case  will 
admit,  where  all  the  books,  in- 
voices, and  vouchers  are  preserved, 
the  insured  must  give,  in  his  pre- 
liminary proofs,  full  and  exact 
particulars  of  his  loss.  Jon^  v. 
Mechanics^  Fire  Insurance  Co.,     29 

2.  If  the  insurers  intend  to  insist 
upon  defects  in  the  preliminary 
proofs,  they  should  notify  the 
policy  holder  that  he  may  amend 
them  in  time,  if  he  can.  If  they 
are  silent  or  object  on  other 
grounds,  it  is  evidence  of  waiver. 

lb. 

3.  If,  after  a  reasonable  time  to  ex- 
amine the  proofs  presented  and 
received,  the  insurers  do  not  ob- 
ject to  them,  but  are  silent  until 
their  time  for  payment  has  expired, 
or  is  about  to  expire,  such  delay 
shall  be  evidence,  from  which  the 
jury  may  infer  a  waiver  of  the 
defects.  lb. 

.  Fraud  and  false  swearing  will 
avoid  the  policy ;  but  mere  mis- 
takes in  stating  facts,  which  do  not, 
in  themselves,  annul  its  conditions, 
and  do  not  appear  to  be  wilful 
misrepresentations,  will  not  defeat 
the  action.  lb. 

The  ledger  and  cash  book  of  the 
insured  may,  in  some  cases,  be  re- 
ceived in  evidence.  1  b. 

A  witness,  in  the  same  business  in 
another  place,  and  where  the  con- 
ditions are  unlike,  cannot  be  asked 
the  pro])ortion  between  his  stock 
and  sales,  to  raise  a  presumption 
of  fraudulent  statement  by  the 
plaintiff'.  {Insurance  Co.  v.  Weide, 
11  Wall.  438,  distinguished.)      lb. 


INSOLVENT  LAWS. 

Our  state  insolvent  laws  are  not 
bankrupt  laws,  and  are  not  su8- 


INDEX. 


585< 


pended  by  the  passage  of  tliej 
national  bankrupt  act.  Query  :\ 
Whether  they  would  be  suspended! 
if  they  were  baniirupt  laws?! 
Steelraan  v.  Mattix  et  al.,  344 

2.  In  a  case  not  provided  for  by  the 
nadonal  authority,  the  force  of  i 
state  legislation  is  undisturbed,  for 
no  conflict  can  arise  between  the| 
two  jurisdictions.  lb.\ 

3.  If  our  state  insolvent  laws  are  sus- 
pended, a  bond  given  under  the 
act  of  April  15th,  1846,  {Nix.  Dig. 
386,J  is  obligatory.  lb. 


INTEREST. 

Where  a  judgment  was  entered  Octo- 
ber 1st,  1863,  the  rate  of  interest 
being  then  six  per  centum,  such 
rate  will  not  be  increased  to  seven 
per  centum  after  March  15th,  1866, 
when  the  act  was  passed  changing 
the  legal  rate  of  interest.  Chx  et 
al.  V.  Marian,  389 


JUDGMENT. 

1.  A  judgment  obtained  in  a  proceed- 
ing by  attachment  against  a  non- 
resident debtor,  who  does  not  ap- 
pear to  such  suit,  will  not  form  a 
legal  foundation  for  an  action. 
Miller  v.  Dungan,  21 

2.  Where  a  judgment  was  entered 
October  1st,  1863,  the  rate  of  inter- 
est being  then  six  per  centum,  such 
rate  will  not  be  increased  to  seven 
per  centum  after  March  15th,  1866, 
when  the  act  was  passed  changing 
the  legal  rate  of  interest.  Cox  et 
al.  V.  Marlatt,  389 


JUROE. 

l.AflBdavits  of  jurors  are  admissible 
in  their  own  exculpation,  and  to 
sustain  the  verdict ;  but  when 
offered  for  tlie  purpose  of  contra- 
dicting or  destroying  the  verdict, 
they  have  been  regarded  always 


by  this  court  as  against  the  policy 
of  the  law,  and  on  iliai  ground 
have  been  invariably  rejected. 
Hutchinson  ads.  Consumers'  Coal 
Co.,  24 

2.  Applications  to  set  aside  verdicts 
for  the  misbehavior  of  jurors,  are 
addressed  to  the  sound  legal  dis- 
cretion of  the  court,  and  cannot 
ordinarily  be  brought  to  the  test  of 
any  fixed  and  definite  rule.  Each 
application  must  be  determined 
mainly  upon  its  own  peculiar  facts- 
and  circumstances,  and  should  be 
granted  or  refused  with  a  view,, 
not  so  much  to  the  attainment  of 
exact  justice  in  the  particular  case, 
as  to  the  ultimate  effect  of  the  de- 
cision upon  the  administration  of 
justice  in  general.  J6^ 


JUSTICES'  COURTS. 

1.  The  plaintifT  sued  in  the  justice's 
court  on  a  promissory  note.  The- 
cause  was  tried  on  the  return  day 
of  the  summons.  No  statement  of 
demand  was  filed,  but  the  defend- 
ant, in  his  offset,  gave  the  plaintiff 
credit  for  the  note,  and  it  was  re- 
ceived in  evidence  without  objec- 
tion. The  defendant  having  ap- 
pealed to  the  Court  of  Common 
Pleas,  and  the  appeal  liaving  been 
tried  in  his  ab-ence — Held,  that 
the  judgment  of  the  pleas  would 
not  be  reversed  on  the  ground  that 
no  demand  had  been  filed,  and 
that  no  motion  having  been  made 
before  the  justice,  or  in  the  Court 
of  Common  Pleas  for  a  non-suit, 
for  that  reason  the  objection  was 
waived.     Steward  v.  Sears,         173 

2.  The  act  of  April  15th,  1846,  enti- 
tled "An  act  for  the  relief  of 
creditors  against  corporations," 
{Nix.  Big.  172,)  and  the  supple- 
ment thereto  of  March  2"2d,  1865, 
{Nix.  Dig.  173,)  refer  only  to  the 
mode  of  serving  process  in  the- 
higher  courts,  and  not  when  issaed 
by  a  justice  of  the  peace.  Dela- 
ware, Lackawanna  and  Western  R. 
B.  Co.  V.  Ditton,  361 


586 


INDEX 


LACHES. 
See  Promissory  Note,  4. 

LEGISLATIVE  POWER. 

l.Tliat  the  legislature,  under  the 
power  to  make  police  regulations, 
may  prohibit  the  sale  of  alcoholic 
stimulants.  Slate,  ex  rel.  Sandford, 
V.  Court  of  Common  Pleas  of  Morris, 

72 

2.  The  destruction  of  private  prop- 
erty, either  total  or  partial,  or  tlie 
diminution  of  its  value  by  the  act 
of  the  government  directly,  and 
not  merely  incidentally  affecting 
it,  which  deprives  the  owner  of 
the  ordinary  use  of  it,  is  a  taking 
within  the  constitutional  provision, 
which  can  only  be  exercised  under 
the  right  of  eminent  domain,  on 
just  compensation  made.  Trenton 
Water  Power  Co.  v.  Baff,  335 

5.  The  legislature  cannot  deprive  an 
individual  of  the  advantages  of  a 
stream  of  water  in  its  natural  flow 
over  his  lands,  or  create  an  ease- 
ment in  his  lands  of  the  right  to 
overflow,  without  providing  com- 
pensation for  the  injury.  lb. 

4.  Disqualifications  by  reason  of  in- 
terests that  are  common  to  all  tax 
payers,  may  be  removed  by  the 
legislature,  but  the  legislature  has 
not  the  power,  where  the  interest 
is  peculiar  and  direct,  to  authorize| 
an  interested  commissioner  to  de- 
cide his  own  cause,  or  to  give  effect, 
by  a  retrospective  act,  to  any  action 
of  the  commissioners  in  which  he 
took  part.  Slate,  Winans,  pros.,  v. 
Crane,  Collector,  39  i 

5.  When  the  legislature  provides  for 
the  exercise  of  judicial  fimctions, 
it  cannot  change  their  essential 
nature,  and  authorize  a  judgment 
in  violation  of  the  maxim  that  no 
person  can  be  a  judge  in  his  own 
cause.  That  maxim  is  founded  in 
natural  justice  and  fundamental 
Jaw,  and  is  inherent  in  and  a  part  of 
the  nature  of  judicial  action.      lb. 


6.  The  constitutional  restriction  on 
taking  private  property  without 
compensation,  is  confined  to  a 
single  branch  of  the  legislative 
authority,  the  right  of  eminent  do- 
main, an(l  has  no  applii'ation  to  an 
assessment  ma<le  under  tiie  police 
powers  of  the  legislature.  Stale, 
Brittin  et  al.,  v.  Blake  et  at.,       443 

7.  The  legislature  alone  has  the 
power  to  release  dedicated  lands 
and  discharge  tiie  public  servitude. 
Hoboken  Land  and,  Improv't  Co.  v. 
Mayor,  &c.,  of  Hoboken,  540 

See  Constitution  and  Constitu- 
tional Law. 


LEVY. 

A  levy  made  after  the  return  day  of 
a  wi'it  of  fieri  facias  is  a  nullity. 
Kemble's  Adn'rs  v.  Harris,         526 


LIEN  LAW. 

The  act  for  the  collection  of  demands 
against  sliips,  steamboats,  and  other 
vessels,  (Nix.  Dig.  57ti,j  does  not 
conflict  with  the  constitution  of 
New  Jersey,  by  violating  the  right 
of  trial  by  jury.  Edwards  et  al.  v. 
Elliott,  449 

LIMITATIONS. 

See  Statute  of  Limitations. 


LOCAL  OPTION  LAW. 

The  Chatham  local  option  law  de- 
clares the  retail  of  ardent  spirits 
without  license  to  be  unlawful,  and 
provides  that  no  license  shall  be 
granted  if  a  majority  vote  of  the 
township  is  for  *'  no  license."  Held, 
that  the  act  is  constitutional.  State, 
ex  rel.  Sandford,  v.  Court  of  Common 
Pleas  of  Mori-is,  72 


MARRIED  WOMEN. 

In  a  suit  founded  on  a  contract  of  a 
married  woman,  her  capability  to 


INDEX. 


587 


contract  must  be  shown  in  tlie 
declaration  by  a  staieinent  of  the 
necessary  facts.  Lewis  v.  Perkins 
et  ux.,  133 

See  Husband  axd  Wife. 


MUNICIPAL  CORPORATION. 

That  municipal  corporations  and 
townships  may  be  invested  with 
authority  to  regulate  or  prohibit 
the  retail  of  intoxicating  drinks. 
State,  ex  rel.  Sandford,  v.  Court  of 
Common  Pleas  of  Morris,  72 

^ee  Assessments  fob  Benefits. 
Streets. 


NATIONAL  BANKS. 

See  UsxjKY. 

NEGLIGENCE. 

l.The  driver  of  a  horse  car  is  not 
the  agent  of  a  passenger  so  as  to 
render  such  passenger  cliargeable 
for  the  negligence  of  such  driver. 
Bennett  v.  New  Jersey  R.  R.  &  T. 
Co.,  225 

2.  When  a  passenger  in  a  horse  car 
is  injured  by  the  carelessness  of 
the  engineer  of  a  railroad  com- 
pany in  tlie  management  of  his 
locomotive,  it  is  no  defence  to 
show  contributory  negligence  in 
the  driver  of  the  horse  car.         lb. 


NEW    JERSEY    MIDLAND 
RAILWAY  COMPANY. 

l.Tiie  proviso  in  the  third  section 
of  the  act  incorporating  the  Newi 
Jersey  Midlaud  Railway  Com  i 
pany,  requiring  the  road  to  be  laid 
out  in  Sussex  county,  under  the' 
charter  of  the  New  Jersey,  Hud-, 
son  and  Delaware  Railroad  Com-i 
pany,  is  not  fulfilled,  either  in| 
terms  or  effect,  by  the  report  of  an 
assessment  made  under  the  charter 
of  the  New  Jersey  Western  Rail- 
road Company,  which  states  that 


tiie  commissioners  have  taken  into 
consideration  the  benefits  to  the 
owner  from  sucli  railroad.  The 
benefits  should  not  be  estimated. 
Swayze  v.  N.  J.  Midland  Railway 
Co.,  295 

2.  The  affidavits  and  report  show 
that  the  owner  of  the  land  had 
notice  of  the  meeting  of  commis- 
sioners. Jb. 


NEW  TRIAL.       , 

Where  an  amendment  is  allowed  by 
the  court,  at  the  trial,  on  motion 
to  set  aside  the  verdict,  both  sur- 
prise and  substantial  merits  should 
be  shown ;  and  when  justice  has 
been  done  by  a  verdict,  a  new 
trial  should  not  be  granted.  Joslin 
V.  N.  J.  Car  Spring  Co.,  141 


NON-SUIT. 

A  non-suit  is  proper  when,  from  the 
plaintiff's  own  showing,  it  clearly 
appears  that  he  contributed  by  iiis 
own  carelessness  to  the  happening 
of  the  accident  from  which  he  re- 
ceived damages.  Pennsylvania  R. 
R.  Co.  V.  Matthews,  531 


NUISANCE. 

1.  A  tannery  is  not  per  se  a  nuisance, 
and  cannot  be  abated  by  the  street 
commissioner  or  board  of  health 
until  they  are  adjudged  to  be  so 
employed  as  to  be  inimical  to  pub- 
lic health  or  safety,  or  until  their 
owners  contravene  some  ordinance 
prescribing  the  mode  in  which 
they  shall  be  used,  and  thereby 
make  them  nuisances.  State,  Mar- 
shall, pros.,  V.  Street  Commissioner 
of  Trenton,  283 

2.  The  functions  of  the  board  of 
health  are  of  an  executive  and 
advisory,  and  not  of  a  legislative 
or  judicial  cliaracter.  A  resolu- 
tion passed  by  said  board  declaring 
plaintiff's  tannery  to  be  a  nuisance, 
is  void.  lb. 


i88 


INDEX. 


OATH  OF  APPRAISERS. 
See  Ferrt. 


OFFICE  AND  OFFICERS. 

1.  The  right  to  remove  a  state  oflBcer 
for  misbehavior  in  office  does  not 
appertain  to  the  executive  office — 
such  act  is  judicial,  and  belongs 
to  the  court  of  impeachments. 
State,  ex  rel.  Police  Commissioners 
of  Jei'sey  City,  v.  Pritchard  el  al., 

101 

2.  Certain  police  commissioneKs  of 
Jersey  City,  appointed  by  statute, 
liaving  been  convicted  upon  in- 
dictment of  conspiracy  to  cheat 
the  city,  and  the  governor  having 
declared  their  offices  to  be  thereby 
vacated,  and  having  appointed 
their  successors — Held,  that  such 
executive  action  was  illegal  and 
void,  lb. 


OYSTERS. 

The  seventh  section  of  the  act,  "  for 
the  preservation  of  clams  and 
oysters,"  {Nix.  Dig.  131,)  which 
prohibits  the  raking  ot  gathering 
of  oysters  in  any  of  the  watei-s  of 
this  state  by  any  person,  who  is 
not  at  the  tiaie  and  has  not  been 
for  the  six  months  then  next  pre 

-  ceding,  an  actual  inhabitant  and 
resident  of  this  state,  makes  no 
distinction  between  natural  and 
planted  oysters.  Haney  and  Scat 
tergood  v.  Compton,  501 


PENALTY. 

Proceedings  to  enforce  a  penalty  pre- 
scribed by  an  ordinance  are  de- 
fective when  the  process  does  not 
state  what  ordinance  the  defend 
ants  have  violated,  and  the  time 
when,  and  the  manner  in  which 
the  same  has  been  violated.  State 
Marshall,  pros.,  v.  Street  Commis-\ 
sioner  of  Trenton,  283 


PLEAS  AND  PLEADING. 

A  general  averment  of  the  per- 
formance, on  the  part  of  the 
plainiiftj  of  the  terms  of  a  contract 
requiring  him  to  perform  condi- 
tions precedent,  is  sufficient,  by 
virtue  of  the  tweiity-fiftii  section 
of  the  .supplement  to  the  practice 
act.     Vreeland  v.  Beekman,  13 

2.  In  a  suit  founded  on  a  contract  of 
a  married  woman,  her  capability 
to  contract  must  be  shown  in  the 
declaration  by  a  statement  of  the 
necessary  facts.  Lewis  v.  Perkins 
et  ux.,  133 

3.  In  an  action  for  the  payment  of 
money  on  a  contingency,  the  plead- 
er must  aver,  and  it  must  be  proved 
that  the  contingency  has  happened, 
or  that  performance  was  prevented 
by  the  other  party  by  some  willful 
or  fraudulent  act,  in  violation  of 
his  own  undertaking,  express  or 
implied.    Hinds  v.  Henry,        328 


POLICY  OF  INSURANCE. 

Where,  under  a  charter  for  a  fire  in- 
surance company  to  be  located  in 
Trenton,  the  company  was  estab- 
lished in  Jersey  City — Held,  that 
it  was  a  perversion  of  and  a  fraud 
upon  the  act,  and  gave  no  cor- 
porate color  to  the  company  for 
the  protection  of  those  who  were 
engaged  in,  and  lent  themselves 
knowingly. to  the  scheme,  and  that 
a  policy  issued  by  such  company 
in  Jersey  City  can  be  enforced 
against  the  directors  pecsonally, 
where  ihey  consented  to  become 
directors,  or  knowingly  allowed 
themselves  to  be  held  out  to  the 
world  as  such.  Wonderly  v.  Booth, 
250 

See  Insurance. 


PRACTICE. 

1.  Where  a  reference  is  ordered  by 
the  court,  with  the  consent  of  par- 


INDEX. 


589 


ties,  the  report  of  the  referee  will 
be  controlled  as  the  verdict  of  a 
jury  would  be,  and  set  aside  if  un- 
supported by  the  evidence.  Excel- 
sior Caiyet  Lining  Co.  v.  Potts, 
301 

2.  Where,  in  a  suit  against  the  heirs 
for  a  debt  of  the  ancestor,  under 
the  statute,  {Nix.  Big.  380,)  the 
writ  was  served  upon  one  of  the 
defendants,  and  ;is  to  the  others, 
an  order  was  taken  for  them  to 
appear,  &c.,  and  that  it  be  served 
and  published  as  provided  by  the 
supplement  of  March  3ii,  1S53 — 
Held,  that  the  declaration  should 
be  against  all  the  defendants,  and 
filed  within  thirty  days  from  the 
return  of  the  writ,  if  any  defendant 
has  been  summoned.  Stillwell  v. 
Tomlinson,  359 

3.  What  the  efiect  of  the  declaration, 
after  filed,  in  case  all  the  defend- 
ants are  not  brought  before  the 
court?     Query.  lb. 

4.  In  case  of  judgment  by  default 
against  absent  defendants,  publish- 
ed, the  entry  of  judgment  should 
show  they  were  brought  into  court. 

lb. 

5.  The  act  of  April  15th,  1846,  enti- 
tled "An  act  for  the  relief  of 
ci'editors  against  corporations," 
(Nix.  Dig.  172,)  and  the  supple- 
ment thereto  of  March  22d,  1865, 
(Nix  Dig.  173,)  refer  only  to  the 
mode  of  serving  process  in  the 
higher  courts,  and  not  when  issued 
by  a  justice  of  the  peace.  Dela- 
ware, Lackawanna  and  Western  B. 
B.  Co.  V.  Ditton,  361 

•6.  Unless  the  postea  be  filed  within 
the  ten  days  limited  by  rule  forty- 
five  of  the  Supreme  Court,  at  the 
first  term  after  verdict,  the  party 
holding  the  postea  cannot,  after 
that  time,  move  for  the  filing  and 
judgment,  without  notice  to  the 
opposite  party.  Warwick  v.  Cox, 
392 


When  a  case  is  taken  to  the  cir- 
cuit, and  a  reference  there  ordered 
under  sections  201  and  252  of  the 

Vol.  VII.  37 


practice  act,  (Nix.  Dig.  743,  754,) 
the  proper  place  to  enter  a  dissent 
is  in  the  circuit  minutes.  After 
that,  the  fact  of  the  reference  and 
the  dissent,  together  with  the 
findings  of  the  referee,  should  be 
embodied  in  the  'pontea,  and  it, 
together  with  the  original  report, 
returned  to  this  court.  Halsey  v. 
Paulison,  406 

8.  A  confirmation  can  be  moved  for 
at  bar,  subject  to  a  demand  for  a 
trial  by  jury  at  the  same  term  in 
which  the  report  is  filed,  or  such 
motion  can  be  made  before  the 
circuit  justice,  if  no  demand  for  a 
trial  by  jury  has  been  made.      lb. 

The  demand  for  a  trial  by  jury 
must  be  actually  made  of  the 
court,  and  not  by  a  mere  entry  ia 
the  minutes.  lb. 

10.  The  report  of  the  referee  is  not 
to  be  treated  as  filed,  in  the  con- 
templation of  the  statute,  until  the 
postea  is  also  filed.  lb. 


PRESCRIPTION. 

In  an  action  to  recover  damages 
from  flowage  by  back  water,  a  re- 
quest to  charge  that  a  dam  which 
had  been  in  existence  for  forty 
years,  was  a  legal  structure,  was 
properly  refused,  where  there  was 
some  question  whether  its  mainte- 
nance had  been  peacebly  acqui- 
esced in.  The  court  should  have 
been  asked  to  leave  to  the  jury 
the  question  whether  the  dam  had 
been  maintained  for  the  prescrip- 
tive period,  under  such  circum- 
stances as  to  give  a  right  by  pre- 
scription. Trenton  Water  Power  Co. 
V.  Raff,  335 

See  Dedication. 


PROCESS. 

1.  When  a  summons  in  ejectment  has 
been  issued  to  the  sheriff,  and 
placed  in  his  hands,  it  may  be 
served  by  any  person,  by  direction 


690 


INDEX 


of  the  slieriff,  without  any  fornialj 
deputation  in  writing.  Kloeppiny. 
and  Wife  ads.  Slellmacher,  176 

2.  An  aflBdavit  of  tiie  time  and  man- 
ner of  service  of  a  summons  in 
ejectment  is  required,  whether  the! 
service  be  made  by  the  sheriff  orl 
a  third  person.  IbJ 

3.  If  it  be  shown  by  depositions,  taken  | 
under  a  rule  of  court,  that  the  ser- 
vice of  a  summons  in  ejectment 
was  in  conformity  to  the  law,  and! 
that  the  defendant  had  notice  of 
the  suit  and  its  object,  a  judgment 
by  default  will  not  be  vacated,  al- 
though the  writ  was  returned  witb- 
out  an  affidavit  of  service,  but  an 
amendment  will  be  permitted  by- 
filing  an  affidavit  nunc  pro  tunc,  if 
it  appear  that  the  defendant  has  no 
defence.  lb. 

4.  Proceedings  to  enforce  a  penalty 
prescribed  by  an  ordinance,  are 
defective  when  the  process  does 
not  state  what  ordinance  the  defen- 
dants have  violated,  and  the  time 
when,  and  the  manner  in  which 
the  same  has  been  violated.  State, 
Marshall,  pros.,  v.  Street  Commis- 
sioner of  Trenton,  283 

5.  The  act  of  April  15th,  1846,  en- 
titled, "  An  act  for  the  relief  of 
creditors  against  corporations," 
{Nix.  Dig.  172,)  and  the  supple- 
ment thereto  of  March  22d,  1865, 
{Nix.  Dig.  173,1  refer  only  to  the 
mode  of  serving  process  in  the 
higher  courts,  and  not  when  issued 
by  a  justice  of  the  peace.  Delaware, 
Lackawanna  and  Western  JR.  M.  Co., 
v.  Ditto7i,  361 

6.  The  first  process  in  personal  ac- 
tions in  any  of  the  courts  of  law  of 
this  state,  is  a  summons  or  capias. 
The  writ  of  attachment  is  an  ex- 
ceptional and  extraordinary  reme- 
dy given  by  the  statute.  Leonard 
v.  Stout,  370 

7.  The  practical  test,  in  case  of  for- 
eign attachment,  is  whether  a  legal 
service  of  a  summons  can  be  made 
on  the  debtor,  at  his  dwelling- 
house  or  usual  place  of  abode,  in 
this  state.     If  it   can,  the   extra- 


ordinary writ  of  attachment  cannot 
be  used.  lb. 


PKOMISSORY  NOTE. 

1.  A  person  who  takes  a  note  before 
its  maturity  in  payment  of  or  as 
security  for  a  precedent  debt,  is  a 
bona  fide  holder  of  it  for  value,  and 
entitled  to  protection  as  such. 
Armour  v.  McMichael,  92 

2.  Since  the  supplement  of  February 
15th,  1871,  a  note  without  the 
words,  "  without  defalcation  or  dis- 
count," is  as  secure  against  de- 
fences in  the  hands  of  a  bona  fid^ 
holder  before  maturity,  as  a  note 
with  those  words  would  have  been 
before  that  time.  lb. 

3.  Action  against  the  endorser  of  a 
promissory  note,  in  which  there 
was  no  evidence  of  demand  and 
notice.  The  plaintiff  relied  on  a 
new  promise  by  the-  endorser,  who 
testified  that  he  had  received  no 
notice.  Held,  that  the  plaintiff 
must  show,  that  at  the  time  of  the 
new  promise,  the  endorser  knew 
that  no  notice  had  been  mailed. 
Gtassford  v.  Davis,  348 

4.  Query :  Whether,  in  the  first  in- 
stance, the  plaintiff  must  show 
not  only  the  new  promise,  but 
knowledge  by  the  defendant  of  the 
laches,  or  whether,  upon  proof  of 
tlie  new  promise,  the  presumption 
will  arise  that  demand  of  payment 
was  regularly  made,  and  notice 
duly  given  to  charge  the  endorser? 


PUBLIC  IMPROVEMENTS. 

l.By  the  decision  of  the  Court  of 
Appeals  in  the  Tide  Water  Com- 
pany's case,  it  became  the  estab- 
lished law  of  this  state  that  the 
power  to  at-sess  the  expenses  of 
local  public  improvements  on  pro- 
perty peculiarly  benefited,  is  lim- 
ited   in    amount    to    the    benefit 


INDEX 


591 


conferred.    State,  Morris  and  Essex 
M.  R.  Co.  V.  Jersey  City,  56  [ 

2.  Lands  acquired  for  a  public  use 
by  a  corporation  under  legislative, 
autbority,  which  are  essential  to 
the  exercise  of  its  corporate  fran- 
chises, and  are  held  in  good  faith 
for  that  purpose,  must  be  regarded 
for  purposes  of  taxation  as  devotedi 
to  that  public  use.  In  assessing 
lands  so  circumstanced  for  localj 
improvements,  the  increase  in  tlieir! 
present  market  value  is  not  the 
prcper  basis  of  assessment;  if  not 
benetited  in  their  present  use  byl 
such  improvement,  the  assessment  '1 
should  be  made  on  a  valuation 
depending  on  the  probability  that 
they  may  thereafter  be  converted 
to  other  uses.  lb. 

S.  In  assessing  depot  grounds  of  a 
railroad  company  having  an  ex- 
emption from  taxation  in  its  char- 
ter for  benefits  derived  from  local 
improvements,  supposed  benefits 
arising  from  the  probable  increase 
of  business  in  consequence  of  in- 
creased facilities  of  access  to  its 
depot,  cannot  be  made  the  basis  of 
assessment.  An  assessment  on 
that  principle  would  be  a  tax  on 
the  business  of  the  company  in 
violation  of  the  exemption  in  the 
act  of  incorporation.  lb. 


prevent  injury  from  fire.     Morris 
and  Essex  R.  R.  Co.  v.  Stale,      553 

See  Condemnation  op  Lands. 
Contract,  13. 
Evidence,  5,  6. 
Negligence,  2. 


RAILKOAD. 

1.  As  a  general  rule,  a  railroad  com-I 
paiiy  is  not  bound  to  keep  a  flag- 
man at  tiie  points  where  its  road 
intersects  public  liighways.  Penn- 
sylvania R.  R.  Co.  V.  Matthews,  531  2 


2.  But  this  obligation  may  become 
due  by  reason  of  such  company 
constructing  its  road  so  as  to  make 
the  crossing  or  use  of  such  high- 
ways unnecessarily  dangerous.  lb. 

-3.  A  railroad  company  authorized  to 
use  locomotive  engines  are  not 
responsible  for  damage  occasioned 
by  sparks  emitted  from  an  engine 
traveling  on  their  road;  provided] 
they  are  not  guilty  of  negligence,] 
and  have  taken  due  precaution  to' 


REAL  ESTATE  AGENT. 
See  Broker. 

RECORD  OF  DEED. 

A  copy  of  the  record  of  a  deed  of 
conveyance  has  the  same  effect  as 
evidence  as  the  deed  itself;  and 
in  tiie  absence  of  such  deed,  it  is 
not  competent  to  show,  in  a  trial  at 
law,  that  such  copy  is  not  a  true 
transcript  of  the  deed.  Sisson  v. 
Donnelly,  432 

;.  The  statute  puts  the  copy  from  the 
record  on  the  same  level  with  the 
deed  itself,  and  if  by  mistake  any- 
thing has  been  omitted  from  the 
record,  the  mistake  must,  if  the 
deed  be  lost,  be  rectified  in  a  court 
of  equity.  lb. 

REFERENCE. 

.  Where  a  reference  is  ordered  by 
the  court,  with  the  consent  of 
parties,  the  report  of  the  referee 
will  be  controlled  as  the  verdict 
of  a  jury  would  be,  and  set  aside 
if  unsupported  by  the  evidence. 
Excelsior  Carpet  Lining  Co.  ads. 
Potts,  301 

.  When  a  case  is  taken  to  the  cir- 
cuit, and  a  reference  there  ordered 
under  sections  201  and  252  of  the 
practice  act,  (JSIix.  Dig.  743,  754,) 
the  proper  place  to  enter  a  dissent 
is  in  the  circuit  minutes.  After 
that,  the  fact  of  the  reference  and 
the  dissent,  together  with  the  find- 
ings of  the  referee,  should  be  em- 
bodied in  the  postea,  and  it,  to- 
gether with  the  original  report, 
returned  to  this  court.  Halsey  v. 
Paulison,  406 

3.  A  confirmation  can  be  moved  for 


592 


INDEX 


at  bar,  subject  to  a  demand  for  a 
trial  by  jury  at  the  same  term  in 
which  the  report  is  filed,  or  such 
motion  can  be  made  before  the 
circuit  justice,  if  no  demand  for  a 
trial  by  jury  has  been  made.      lb. 

4.  Tiie  demand  for  a  trial  by  jury 
must  be  actually  made  of  the 
court  and  not  by  a  mere  entry  in 
the  minutes.  lb, 

5.  The  report  of  the  referee  is  not  to 
be  treated  as  filed,  in  the  contem- 
plation of  the  statute,  until  the  pos- 
tea  is  also  filed.  lb. 


ROADS. 

1.  The  return  of  surveyors  of  the 
highwavs  laving  out  a  public  road, 
dated  'November  18th,  1833, 
marked,  filed  in  oflBce  of  county 
clerk,  December  7th,  1833,  and 
recorded  in  Vol.  2  of  the  record 
of  roads.  Tlie  date  of  filing  is 
not  conclusive  evidence  of  the 
date  of  transmission,  and  it  will 
be  presumed  after  the  lapse  of  so 
many  years,  from  the  fact  that  the 
return  actually  was  recorded,  thati 
the  Court  of  Common  Pleas  had' 
adjudicated  that  it  was  filed  ini 
season,  and  that  question  cannot^ 
be  raised  in  this  collateral  pro- 
ceeding. State,  Bodine,  pros.,  v. 
Common  Council  of  Trenton,        198 

2.  A  public  road  described  in  the 
return  as  "  beginning  near  the 
New  Jersey  Central  Railway  de- 
pot, at  Roselle,  on  the  northerly 
side  of  said  depot,  and  in  a  line 
of  a  road  known  as  Chestnut 
street,"  does  not  define  the  begin- 
ning witli  the  requisite  certainty. 
Stale,  Charlier,  pros.,  v.  Woodruff, 

204 

3.  Where  three  terms  of  the  court 
have  intervened  between  the  re- 
turn of  a  public  road  and  an  ap 
plication  for  a  certiorari,  and  the 
road  in  the  meantime  has  been 
opened  and  worked,  an  allocatur 
will  not  be  granted,  and  if  one 
has  been  ordered,  it  will  be  dis- 


j     missed  when  the  facts  are  brought 
I     to  the  knowledge  of  the  court.    lb. 

4.  The  34th  section  of  the  act  con- 
cerning roads,  (Nix.  Dig.  829,) 
prohibits  the  pulling  down  or  re- 
moval of  any  dwelling-house  by 
virtue  of  any  •  provision  in  that 
act,  and  makes  it  unlawfid  to  lay 

I  out  a  road  through  such  dwelling- 
house,  as    the    road   could  not  be 

I  opened  or  used.  State,  Rogers, pros., 
v.  Troth  et  at.,  422 

5.  A  billiard  saloon  attached  to  a 
hotel,  always  used  in  connection 
with  and  as  part  of  the  hotel,  for 
purposes  appertaining  to  the  busi- 
ness of  the  hotel,  and  for  no  other 
purpose,  and  erected  for  that  ob- 
ject, is  a  part  of  the  dwelling- 
house,  within  the  protection  of  the 
said  34th  section  of  the  road  act. 

lb. 


SALE. 

1.  A  sale  of  standing  timber,  by  the 
owner  of  the  freehold,  is  not  a  sale 
of  a  ciiattel  interest,  but  of  an 
interest  in  lands,  and  is  not  con- 
trolled by  the  doctrine  of  war- 
ranty of  title  in  sales  of  personal 
property.     Slocum  v.  Seymour,  138 

2.  In  no  sense  can  trees,  the  natural 
and  permanent  growth  of  the  soil, 
be  regarded  as  partaking  of  the 
character  of  emblements  or  fructus 
industriates,  but  tre  a  part  of  the 
inheritance,  and  can  only  become 
personalty  by  actual  severance,  or 
by  a  severance  in  contemplation 
of  law,  as  the  effect  of  a  proper 
instrument  of  writing.  lb. 


SALES  OF  LAND  FOR  TAXES. 

1.  The  sale  of  lands  for  taxes  or  as- 
sessments is  the  execution  of  a 
naked  power,  and  every  require- 
ment of  the  statute  imposing  the 
liability,  and  prescribing  the  pro- 
cedure to  enforce  it,  which  is  for 
the  security  of  the  owner,  or  for 
his  benefit,  must  be  strictly  con- 


INDEX 


59a 


fofoied  to.     Slate,  Baxter,  pros.,  v. 
Mayor  and  Aldermen  of  Jersey  City, 

188 

2.  A  legal  assessment  is  the  founda- 
tion of  the  authority  to  sell.  An 
assessment  which  is  illegal  will 
not  be  aided  by  the  ratification  of 
the  common  council.  lb. 

i.  The  publication  of  notices  to  tax 
payers,  required  by  tax  laws,  is  an 
indispensable  preliminary  to  the 
legality  of  a  tax  sale,  and  it  must 
be  made  in  strict  accordance  with 
statutory  requirement.  State,  Alden, 
pros.,  V.  Mayor,  &c.,  of  Newar/c,  2S8 


SCHOOL  TAX. 

1.  The  certificate  upon  which  a  school 
tax  is  assessed  must  show  how  the 
money  ordered  to  be  raised  is  to 
be  apportioned.  State,  Banghart 
pros.,  V.  Sullivan,  Collector,  89 

2.  The  material  facts  set  forth  in  the 
certificate  must  be  verified  by  the 
oath  of  the  clerk.  lb. 

3.  A  county  collector  is  not  required 
or  permitted  by  the  "  act  to  estab- 
lish a  system  of  public  instruc- 
tion," (Nix.  Dig.  878,  ?  75,)  to  exer- 
cise any  discretion  as  to  how  much 
of  the  state  appropriation  the 
sevieral  township  collectors  in  the 
county  are  entitled  to  receive  from 
him.  That  question,  as  between 
these  officers,  is  settled  conclu- 
sively by  the  order  of  the  county 
superintendent  of  public  schools. 
State,  Herder,  Collector  of  Amwell, 
V.  Collector  of  Hunterdon,  363 

4.  The  notion  that  a  county  collector 
can,  in  any  case,  lawfully  reduce 
the  amount  by  setting  up  some' 
counter  claim,  whether  in  his  own 
behalf  or  in  behalf  of  his  county, 
and  whether  against  the  townsliipj 
collector,  personally,  or  against  hisi 
township,  is  neither  justified  by' 
the  language  nor  consistent  with 
the  policy  of  our  school  laws.     -/6.; 


SERVITUDE. 

See  Dedication. 

SHERIFF. 

1.  A  sherifi"  is  bound  to  exercise 
reasonable  care  and  judgment  in 
the  management  of  his  sales,  so 
that  the  property  levied  on  may  be 
sold  to  the  best  advantage  to  make 
the  money,  subject,  of  course,  to 
all  the  requirements  of  the  statutes 
affecting  sheriffs'  sales.  Todd  end 
Rafferty  v.  Hoagtund  et  al.,         352 

2.  If  there  is  a  failure  of  bidders,  or 
the  circumstances  of  the  sale  are 
such  ns  to  show  that  the  property 
will  be  sold  for  a  price  unreason- 
ably inadequate  to  what  it  ought 
to  bring  at  a  sheriff''s  sale,  it  is  the 
duty  of  a  sheriff,  unless  otherwise 
ordered,  and  where  the  creditor  is 
likely  to  be  benefited,  to  adjourn 
the  sale  for  another  opportunity. 

lb. 

3.  It  is  the  duty  of  a  sheriff  to -make 
the  money  on  an  execution,  if  by 
fair  judgment  and  skill  it  can  be 
done  according  to  the  modes  pro- 
vided by  the  law.  His  discretion 
should  be  liberally  considered  in 
the  absence  of  bad  faith,  yet,  the 
sheriff  is  responsible  for  a  clear 
neglect  of  its  proper  exercise  to 
the  measure  stated.  2b. 

4.  Where  adverse  claim  is  set  up  io 
property  levied  on  by  a  sheriff, 
and  the  plaintiff's  attorney  and 
the  sheriff  are  in  correspondence 
as  to  the  action  to  be  taken  in  the 
premises,  the  latter  asking  and  the 
former  promising  instructions,  the 
sheriff  is  not  liable  to  amercement 
for  not  proceeding  to  sale  until  he 
shall  have  disobeyed  or  disregard- 
ed positive,  reasonable  and  lawful 
directions  to  that  end.  Kemble's 
Adm'rs  v.  Harris,  526 


STATE  OF  DEMAND. 

The  plaintifi"  sued    in    the  justice's 
court  on  a  promissory  note.     The 


091 


INDEX. 


cause  was  tried  on  the  return  day 
of  the  summons.  No  statement  of 
demand  was  filed,  but  the  defend- 
ant, in  his  offset,  gave  the  plaintiff 
credit  for  the  note,  and  it  was  re- 
ceived in  evidence  without  objec- 
tion. The  defendant  having  ap- 
pealed 10  the  Court  of  Common 
Pleas,  and  the  appeal  having  been 
tried  in  his  ab&ence — Held,  that 
the  judgment  of  the  pleas  would 
not  be  reversed  on  the  ground  that 
no  demand  had  been  filed,  and 
that  no  motion  having  been  made 
before  the  justice,  or  in  the  Court 
of  Common  Pleas  for  a  non-suit 
for  that  reason  the  objection  was 
waived.    Steward  v.  Sears,         ITS 


STATUTE 

1.  When  the  words  of  a  statute,  di- 
recting the  mode  or  time  of  doing 
an  act,  are  clear,  the  provision 
cannot  be  deemed  merely  directory, 
unless  the  literal  interjiretation 
will  lead  to  a  result  so  absurd  or 
highly  inconvenient  as  to  demon- 
strate that  such  could  not  liave 
been  the  legislative  intent.  Pro- 
prietors of  Morris  Aqueduct  ads. 
Jones,  206 

2.  A  statute  giving  an  appeal  from 
the  award  of  commissioners  to  the 
first  or  second  terra  of  the  Circuit 
Court  after  such  award,  required  a 
notice  of  such  appeal  to  be  given 
"  two  weeks  prior  to  such  term" — 
held,  that  this  provision  must  be 
strictly  complied  with.  lb. 

S.  Held  further,  that  such  notice  was 
not  regulated  by  the  supplement 
to  the  practice  act,  passed  14th 
March,  1873.  lb. 

4.  Commissioners  being  authorized 
to  borrow  money  "on  the  faith 
and  credit "  of  a  township,  and  to 
execute  bonds  therefor  "  under 
their  hands  and  seals  respective- 
ly"— Held,  that  power  was  thereby 
given  to  make  such  bomis  in  the 
name  of  the  townsiiip.  3Iorrison 
V.  Inhabitants  of  Township  of  Ber- 
nards, 219 


5.  Held  farther,  that  a  suit  would  lie 
on  such  bonds,  although  the  act 
provided  a  particular  mode  of  rais- 
ing the  money  to  pay  them.        Ih. 

6.  The  statute  further  providing  that 
no  bonds  should  be  issued  by  such 
commissioners,  without  the  written 
consent  of  a  majority  of  the  tar 
payers,  and  which  consent  was 
required  after  being  proved  to  be 
filed  in  the  county  clerk's  ofBce — 
Held,  that  the  declaration  must 
show  a  compliance  with  such  re- 
quirements. 76. 

7.  The  statute  also  required  such 
bonds  to  be  certified  "  across " 
their  face  by  the  county  clerk,  to 
have  been  registered,  and  declared 
that  no  bonds  should  be  valid 
unless  so  registered;  held,  that  it 
must  also  appear  in  the  ileclara- 
tion,  that  such  acts  have  been  done. 

lb. 

See  Construction  of  Statutes. 


STATUTE  OF  FRAUDS. 

1.  When  a  contract  comprehends  an 
interest  in  trees  standing,  with  a 
right  in  the  vendee  to  sever  them, 
the  subject  matter  is  then  an  inter- 
est in  land  within  the  statute  of 
frauds.     Slocum  v.  Seymour,       138 

2.  The  plaintifif  made  an  agreement 
with  tlie  defendant  to  let  him  take 
the  sand  out  of  a  pit  fifty  feet 
wide,  the  entire  length,  for  the 
sum  of  §6-30,  and  gave  him  one 
year's  time  to  take  it  out ;  the 
agreement  was  signed  by  the 
plaintiflj  and  not  by  the  defendant. 
Held.,  that  the  agreement  was  for 
the  sale  of  an  interest  in  lands,  and 
not  having  been  signed  by  the  de- 
fendant, is  as  to  him,  by  force  of 
the  statute  of  frauds,  void.  O'Don- 
nell  ads.  Brehen,  257 

3.  A  promise  to  pay  a  subsisting 
debt  in  order  to  be  unaflected  by 
the  statute  of  frauds,  &c.,  must  be 
founded  on   a  consideration  bene- 


INDEX. 


695 


ficial  to  the  promisor. 
V.  Howell, 


Cowenhovenl 
323 


.  The  defendant  promised  to  pay 
the  plaiiiliif  if  he  would  send  cer- 
tain depositions  which  he  had 
taken,  and  upon  which  he  claimed 
to  have  a  lien,  to  his,  defendant's, 
son,  who  was  solely  interested  in 
thera,  that  he,  defendant,  would 
pay  the  expenses  and  fees  for 
taking  them ;  the  pape^  having 
been  sent  in  reliance  on  this 
promise— fieW,  that  it  could  not  he\ 
enforced,  as  it  was  purely  a  promise 
to  pay  the  debt  of  another.         lb. 


STATUTE  OF  LIMITATIONS. 

1.  A  sole  executor  (and  of  course  if 
one,  all,)  has  the  power,  by  a  new 
promise,  to  remove  the  bar  of  the 
statute  of  limitations.  Shreve  v. 
Joyce,  44 

2.  One  of  two  or  more  executors  can 
bind  an  estate  by  the  new  promise, 
and  it  does  not  thereby  make  the 
representatives    personally   liable. 

lb. 

3.  A  co-executor  can  no  more  be 
made  personally  liable  by  the  new 
promise  of  another  executor,  than 
in  any  other  matter  wliere  tlie 
validity  of  the  act  of  the  indi-l 
vidual  execMtor  in  binding  the: 
estate  may  be  unquestioned.  The 
judgment  in  either  case  is  de  bonis' 
testatoris,  and  there  can  be  no  per- 
sonal liability,  except  where  the 
executor  has  made  himself  charge- 
able with  a  devastavit.  lb. 

1.  A  promise  to  remove  the  bar  of 
the  statute  may  be  proved  against 
executors  in  the  same  way  as  in 
other  cases,  being  always  suflS- 
ciently  careful  to  see  that  the 
deduction  is  properly  drawn  from 
the  facts  lb. 


STKEETS. 

8.  Where  a  street  was  laid  out   by 
certain  so  called  map  and  grade 


commissioners,  whose  only  duty  it 
was  to  adopt  a  certain  scheme  for 
streets  and  avenues,  which  streets- 
and  avenues  might  or  might  not 
thereafter  be  opened  and  devoted 
to  public  use,  and  several  years 
after  such  laying  out,  and  before 
the  ordinance  opening  the  street 
was  passed,  the  land  owner  erected 
buildings  within  the  line  of  the 
street  so  laid  out.  Held,  that 
while  the  opening  of  the  street 
was  thus  in  abeyance,  the  land 
owner  was  not  deprived  of  the 
right  to  use  his  land  in  any  lawful 
manner,  and  not  to  allow  him  for 
his  buildings  erected  before  the 
ordinance  opening  the  street  was 
passed,  would,  in  substance,  be  to- 
allow  a  taking  of  private  property 
for  public  use,  without  making 
any  just  compensation  therefor. 
State,  Jones,  pros.,  v.  Cairagan, 
Collector,  52. 

.  The  common  council  of  the  city 
of  Trenton  have  no  authority 
under  the  general  power  to  regu- 
late streets,  to  grant  to  an  indi- 
vidual license  to  lay  a  railroad 
track  across  the  public  street  for 
his  own  use.  State,  Montgomery, 
pros.,  v.  Inhabitants  of  Trenton,     79 

.  Streets  and  iiighways  are  intended 
for  the  common  and  equal  benefit 
of  all  citizens,  to  which  end  they 
must  be  regulated.  Jb.. 

.  An  encroachment  on  a  street  can- 
not be  legalized  by  mere  lapse  of 
time.  Stale,  Bodine,  pros.,  v.  Com- 
mon Council  of  Trenton,  198- 

.  Acceptance  of  a  dedicated  street 
by  a  formal  act  or  public  user,  is 
not  essential  to  cut  otf  the  owner 
from  the  power  of  retraction,  and 
subject  the  dedicated  lands  to  tlie 
public  use,  when  in  the  judgment 
of  the  local  authorities  the  wants 
or  convenience  of  the  public  re- 
quire it  for  that  purpose.  Hobo- 
ken  Land  and  Improvement  Co.  v. 
Mayor,  <&c.,  of  Hoboken,  540' 

6.  A  street  delineated  on  a  dedi- 
cating map  as  extending  to  a  pub- 
lic navigable  river,  will  be  con- 
tinued   to    the    new   water    front 


596 


INDEX. 


obtained  by  filling  in  by  the  owner, 
under  legislative  permission.    lb. 

7.  An  ordinance  of  the  municipal 
government  adopting  a  part  of  a 
public  street  for  present  use,  is  not 
an  abandonment  of  the  rest  of  it. 

lb. 

8.  The  local  corporate  authorities 
have  no  power  in  the  absence  of 
legislative  authority,  to  release 
the  public  right  in  a  dedicated 
street.  tb. 

9.  Lapse  of  time,  however  long  the 
public  right  in  a  street  is  sus- 
pended, though  coupled  with  an 
user  by  the  owner  which  would 
otherwise  be  adverse,  will  not 
make  title  by  prescription  against 
the  public.  1  b. 

10.  The  legislature  alone  has  the 
power  to  release  the  dedicated 
lands  and  discharge  the  public 
servitude.  lb. 

11.  An  act  of  the  legislature  incor 
porating  a  land  and  improvement 
company,  and  authorizing  it  to  fill 
up,  occupy,  possess,  and  enjoy  all 
land  covered  with  water,  fronting 
and  adjoining  lands  that  might 
be  owned  by  the  corporation,  and 
to  construct  thereon  wharves, 
piers,  slips,  and  other  structures 
for  commercial  and  shipping  pur 
poses,  will  not  extinguish  the 
public  right  of  access  to  the  navi 
gable  waters  by  a  street  on  land 
purchased  by  the  company,  which, 
by  the  dedication,  terminated  at 
the  high  water  line,  as  it  was  when 
the  dedication  was  made ;  but  the 
connection  of  the  street  with  the 
navigable  waters  will  be  continued 
over  lands  reclaimed  by  filling  in 
under  such  legislative  permission. 

lb 

12.  The  owner  of  lands  on  tide-water, 
by  a  map  filed  in  1805,  dedicated 
streets  and  squares  to  a  public  use, 
In  1838  the  defendants  were  in- 
corporated as  a  land  and  improve 
ment  company.  In  1839  they 
acquired  title  in  fee  to  the  tract 
through  which  the  dedicated 
streets  were  laid.     By  the  charter 


the  company  was  authorized  to  fill 
up,  occupy,  possess,  and  enjoy  all 
land  covered  with  water,  fronting 
and  adjoining  lands  that  might  be 
owned  by  the  corporation,  and  con- 
struct thereon  wharves,  &c.,  with 
proviso  tiiat  it  should  not  be  law- 
ful to  fill  in  or  construct  any  wharf, 
&c.,  immediately  in  front  of  lands 
of  any  other  person  owning  to  the 
water,  without  consent  in  writing. 
In  the  map  of  dedication,  Fourth 
street  was  delineated  as  termi- 
nating at  the  water,  and  it  was 
found  by  the  jury  that  the  dedication 
was  to  high  water,  as  it  was  when 
the  map  was  made.  The  company 
filled  in  a  considerable  distance 
beyond  that  line.  In  1857  the 
city  passed  an  ordinance  that 
Fourth  street  should  extend  be- 
tween certain  limits  short  of  the 
original  line  of  high  water.  The 
defendants  continued  in  possession 
of  the  rest  of  the  street  until  this 
action  was  brought  in  1870.  In 
ejectment  by  the  city  for  that  part 
of  the  dedicated  street — Held,  that 
the  street  was,  by  operation  of  law, 
extended  to  the  new  water  front 
obtained  by  filling  in,  and  that  the 
public  right  of  access  to  the  water 
had  not.  been  abandoned  or  lost  by 
lapse  of  time,  or  released.  1  b 


TAXATION.    TAXES. 

1.  Where,  under  an  order  of  the 
Court  of  Chancery,  lands  are  sold, 
and  a  proportion  of  the  proceeds 
invested  on  bonds  and  mortgages 
for  the  use  of  the  widow,  in  lieu 
of  her  estate,  as  tenant  in  dower,  a 
tax  can  be  levied  only  upon  the 
amount  of  interest  which  had  be- 
come due,  and  was  unpaid  upon 
the  bonds  and  mortgages  at  the 
time  of  the  assessment.  State,  Hill, 
pros.,  v  Hansom,  Collector,  50 

2.  The  legislature  may  create  special 
taxing  districts,  defining  their  lim- 
its in  its  discretion ;  or  designate 
certain  occupations,  trades  or  em- 
ployments, as  special  subjects  for 
taxation ;  or  discriminate  between 
different  kinds  of  property  in  the 
rate  of  taxation  ;  or  may  apportion 


INDEX. 


597 


the  tax  among  the  classes  of  per- 
sons or  property  made  liable  to 
taxation,  in  such  manner  as  may 
seem  fit.  But  when  the  taxing 
district  lias  been  defined,  and  the 
classes  of  persons,  or  kinds  of  pro- 
perty specially  set  apart  for  taxa- 
tion, have  been  designated,  the 
tax  mnst  be  apportioned  among 
those  who  are  to  bear  the  burden 
upon  tlie  rule  of  uniformity.  State, 
ex  rel.  Trustees,  &c.,  v.  Township 
Committee  of  Meadington,  66 

8.  A  tax  upon  the  persons  or  prop- 
erty of  A,  B  and  C  individually, 
whether  designated  by  name  or  in 
any  other  way,  which  is  in  excess  of 
an  equal  apportionment  among  the 
persons  or  property  of  the  class  of 
persons  or  kind  of  property  sub- 
ject to  the  taxation,  is,  to  the 
extent  of  such  excess,  the  taking  of 
private  property  for  a  public  use 
without  compensation.  lb. 

4.  The  trustees  of  a  school  district 
were,  by  a  special  act  of  the  legis- 
lature, authorized  to  complete  a 
school-house  for  the  district,  and 
the  township  committee  of  the 
township  in  which  the  district 
was,  were  required  to  issue  tovvn-l 
ship  bonds  to  meet  the  expenses 
of  the  improvement,  and  were! 
authorized  to  provide  for  payment 
of  such  bonds  by  taxation  on  the 
estates  of  the  inhabitants  of  the 
school  district ;  but  in  assessing 
the  first  amount  directed  to  be 
raised  for  that  purpose,  not  ex-'< 
ceeding  $2000,  the  assessor  was' 
required  to  assess  the  amount  so 
ordered  in  excess  of  $1000  only! 
upon  certain  taxable  inhabitants,' 
who  had  not  paid  the  assessment 
made  against  them  the  preceding 
year,  for  defraying  the  cost  of  said 
building.  The  amount  of  the 
taxes  assessed  in  the  former  assess- 
ment against  such  individuals,  and 
for  which  they  were  delinquent, 
was  less  than  $200.  On  applica- 
tion for  a  mandamus  to  the  town 
committee  to  compel  them  to  issue 
such  bonds,  the  court  denied  the 
application  on  the  ground  that  it 
was  doubtful  whether  the  means 
of  indemnification  provided  could 
be  made  available  by  the  imposi- 


tion of  a  lawful  tax  under  the  pro- 
visions of  the  act.  lb. 

5.  Under  the  eighth  section  of  the 
tax  law  of  1866,  {Nix.  Dig.  952,) 
it  is  not  necessary,  in  order  to 
make  a  valid  assessment,  that  the 
assessor  shall  examine  persons  to 
be  assessed  by  oath  or  affirmation. 
State,  Keeler,  pros.,  v.  Tindall,  Col- 
lector, 97 

6.  The  essential  thing  to  be  done  hj 
the  assessor  under  this  act,  is  to 
ascertain,  to  the  best  of  his  abil- 
ity, and  according  to  his  own 
judgment,  the  names  of  the  per- 
sons taxable,  and  the  actual  value 
of  all  taxable  property ;  and  this 
he  is  to  do  by  diligent  inquiry,  by 
the  oath  or  affirmation  of  the  per- 
sons to  be  assessed,  or  of  other 
persons,  if  necessary,  and  by  per- 
sonal examination  of  the  property 
to  be  valued.  Ib^ 

7.  With  respect  to  the  enumerated 
means  or  sources  of  information, 
by  or  from  which  the  value  of 
property  is  to  be  ascertained  by 
the  assessor,  the  act  is  not  manda- 
tory, but  merely  directory.         lb. 

8.  The  assessor,  in  describing  real 
estate  under  the  act  concerning 
taxes,  (Nix.  Dig.  952,  pi.  92,)  may 
use  abbreviations  so  long  as  they 
are  intelligible,  and  leave  no  un- 
certainty as  to  the  property  upoa 
which  the  imposition  is  intended 
to  be  laid.  State,  Alden,  pros.,  v. 
Mayor,  &c.,  of  Newark,  28S 

9.  Lands  must  be  assessed  in  the 
name  of  the  owner,  at  the  time 
when  the  assessment  is  to  be  com- 
menced. State,  Rutherford  Park 
Association,  pros.,  v.  Township  of 
Union,  30^ 

10.  If  lands  are  not  designated  by 
such  short  description  as  will  be- 
sufficient  to  ascertain  the  location 
and  extent,  and  a  sale  thereof  can- 
not be  made,  the  tax  for  the  same 
may  still  be  collected  by  warrant 
against  the  goods,  chattels,  and 
person  of  the  owner.  JIk 


598 


INDEX. 


11.  A  mistake  in  the  name  of  the 
owner  may  be  corrected  where  he 
has  notice.  lb. 

12.  When  the  true  owner  has  notice, 
and  is  a  party  to  the  record,  the 
court  will  reverse  or  affirm,  in  partj 
or  in  the  whole,  the  tax  against) 
his  lands  according  to  the  justice 
■of  the  case.  Case  distinguished, 
from  State  v.  Hardin,  5  Vroom  79.' 

lb.\ 

13.  The  residence  required  by  tlie 
tax  Jaw  of  1866,  (Nix.  Dig.  951,) 
to  make  one  liable  to  a  personal 
tax  in  a  particular  township  or 
ward,  is  (Trecisely  the  same  in  kind 
■as  that  which  will  entitle  him  to 
vote  there.  State,  Shai-p,  p7-os.,  v. 
Oisper,  Collector,  367 

14.  The  deduction  of  debts  in  cases 
of  taxation  must  be  claimed  and 
made,  in  tlie  first  instance,  at  the 
place  of  the  residence  of  the  tax 
payer.  State,  Shreie,p)os.,  v.  Cross- 
ley,  Collector,  425 

15.  It  does  not  follow  that  if  the  state 
should  lease  a  portion  of  the  pub 
lie  domain,  the  lands  so  leased 
would  be  exempt  from  taxation. 
State,  Morris  Canal  and  Banking 
iCo.,  pros.,  V.  Haight,  Collector,    471 

IB.  Whether  lands  of  the  state  con- 
veyed by  statute  for  a  term  of 
years,  or  for  any  other  tei-m,  are 
taxable  or  not,  depends  not  on  the 
qualities  of  the  estate  so  granted, 
but  on  the  legislative  intention  ex- 
pressed in  such  act.  lb. 

17.  The  act  incorporating  the  pros- 
ecutors declares  that  their  property 
shall  not  be  subject  to  taxes  or 
assessments:  Held,  tiuit  the  words 
taxes  or  assessments  are  not  synon 
ymous,  and  that  they  exempt  the 
property  from  assessments  for 
benefits  as  well  as  from  taxes  for 
:generai  revenue  for  public  use. 
State,  Protestant  Foster  Home  So 
ciety,  pros.,  t.  Mayor,  &e.,  of  New- 
nrk,  478 

£ee  Board  of  Assessors, 

Commissioners  of  Appeal. 


TOWNSHIP  COLLECTOR. 
See  School  Tax,  3,  4. 

TRIAL  BY  JURY. 

See  Constitution  and  Constitu- 
tional Law,  8. 

USURY. 

1.  Under  the  New  Y'ork  statute 
(Laws,  1850,  ch.  172,  p.  334,)  and 
decisions  thereon,  a  corporation, 
its  endorsers,  guarantors,  or  sure- 
ties, cannot  avoid  its  contract  on 
the  ground  of  usury,  whether  by 
defence  or  affirmative  action. 
Bramhall  v.  Atlantic  National  Bank, 

243 

2.  The  object  of  that  statute  is  to 
protect  the  special  contracts  of  a 
corporation  for  a  higher  rate  than 
seven  per  cent.,  and  on  all  con- 
tracts not  providing  for  a  higher 
rate,  interest  is  collected  against  a 
corporation  at  seven  per  cent, 
under  the  general  act.  (Zd  Vol.  Rev. 
Stat.  N.  Y.,  p.  72.)  lb. 

3.  The  act  of  1850  in  that  state, 
does  not  disturb  the  general  rate 
of  seven  per  cent.,  but  in  efiect 
repeals  all  penalties  against  a 
higher  rale  as  to  corporations,  and 
leaves  parties  at  liberty  to  make  a 
special  contract  with  a  corporation 
without  limitation.  lb. 

4.  Under  the  act  of  congress  (J.cte, 
1864,  p.  108,  §  30,)  national  banks 
may  take  any  rate  fixed  by  the 
laws  of  the  state  or  territory  where 
created,  and  in  case  no  rate  is 
fixed,  the  bank  may  charge  any 
rate  not  exceeding  seven  per  cent. 
Had  the  rate  in  New  York  been 
ten  per  cent.,  the  bank  could  liave 
taken  it,  and  so  when  the  rate  is 
seven  per  cent,  the  bank  takes  it, 
not  because  that  is  the  rate  by  act 
of  congress,  but  because  it  is  so  by 
the  New  York  statute.  lb. 

5.  The  penal  clause  in  the  30th  sec- 


INDEX. 


599 


tion  of  said  act  of  congress,  viz., 
"And  the  knowingly  taking,  re- 
ceiving, reserving  or  charging  a 
rate  of  interest  greater  than  afore- 
said, shall  be  held  and  adjudged 
a  forfeiture  of  tlie  entire  interest 
which  the  note,  bill  or  other  evi 
dence  of  debt  carries  with  it,  or 
which  has  been  agreed  to  be  paid 
thereon,"  &c.,  is  not  limited  to 
cases  wiiere  the  bank  is  authorized 
to  charge  seven  per  cent.,  under 
the  act  of  congress,  but  applies, 
also,  where  a  rate  is  fixed  by  tlie 
state  law,  and  no  penalty  provided 
by  thai  law  for  exceeding  it.  lb 

-6.  On  a  loan  to  a  corporation  exceed- 
ing the  New  York  rate,  a  national 
bank  in  that  state  would  be  liable 
to  forfeit  the  interest  or  amount 
agreed  to  be  paid  thereon,  if  know- 
ingly taken,  received,  reserved,  or 
charged  by  the  bank.  lb. 

7.  The  case  of  the  National  Bank  of 
Whitehall  V.  Lamb  et  al.,  decided 
December,  1872,  is  only  an  adju- 
dication in  effect,  that  where  a 
penalty  is  provided  by  a  state  law, 
a  national  bank  is  liable  to  it  for 
usury.  lb. 

8.  The  officers  of  the  bank  supposed 
that  they  were  buying  the  note  of 
the  endorsers,  and  not  of  the  cor- 
poration maker,  and  for  that  rea- 
son, the  bank  was  not  held  liable 
to  a  forfeiture  for  knowingly  charg- 
ing usurious  interest;  but,  inas- 
much as  the  note  was  not  obtained 
by  the  defendants  for  value,  and 
they  were,  in  fact,  accommodation 
endorsers  or  sureties  for  the  corpo- 
ration, the  recovery  by  the  bank 
can  only  be  for  the  amount  paid, 
with  legal  interest.  lb. 


VERDICT. 

X,  Affidavits  of  jurors  are  admissible 
in  their  own  exculpation,  and  to 
sustain  the  verdict;  but  when 
ofiered  for  the  purpose  of  contra- 
dicting or  destroying  the  verdict, 
they  have  been  regarded,  always, 
by  this  court,  as  against  the  policy 
of    the    law,  and  on  that  ground,] 


have  been  invariably  rejected. 
Hutchinson  ads.  Consumer^  Coaj. 
Co.,  24 

2.  Application  to  set  aside  verdicts 
for  the  misbehavior  of  jurors,  are 
addressed  to  the  sound  legal  dis- 
cretion of  the  court,  and  cannot 
ordinarily  be  brought  to  the  test 
of  any  fixed  and  definite  rule. 
Each  application  must  be  deter- 
mined mainly  upon  its  own  pecu- 
liar facts  and  circumstances,  and 
should  be  granted  or  refused  with 
a  view,  not  so  much  to  the  attain- 
ment of  exact  justice  in  the  par- 
ticular case,  as  to  the  ultimate 
effect  of  the  decision  upon  the  ad- 
ministration of  justice  in  general. 

lb. 

3.  vVhere  both  parties  are  innocent, 
a  tainted  verdict  will,  in  general, 
be  set  aside  without  hesitation,  on 
the  application  of  either  party. 
But  tills  will  not  be  done  on  the 
application  of  one  who  has  at- 
tempted, directly  or  indirectly,  to 
influence  the  jury  by  improper 
means,  or  who  has  encouraged,  or 
prompted,  or  knowingly  permitted 
such  an  attempt,  or  who  rests 
under  any  just  suspicion  of  having 
done  so.  lb. 

4.  The  facts  in  this  case,  pointing  sus- 
piciously to  a  corrupt  arrangement 
between  a  friend  ol  the  defendant 
and  one  of  the  jurors,  but  nothing 
appearing  to  cast  suspicion  on  the 
defendant — Held  that,  on  his  ap- 
plication, the  verdict  should  be  set 
aside.  lb. 


WAIVER. 

1.  When  a  city  charter  makes  pay- 
ment, or  a  tender  of  payment,  of 
damages  assessed,  a  prerequisite 
to  the  acquisition  of  title  in  lands 
taken  for  a  street,  the  acquiescence 
of  tlie  land  owner  in  the  entry  of 
the  city  upon  such  lands,  and  a 
demand  of  such  damages,  is  not  a 
waiver  of  the  prerequisite  of  pay- 
ment, so  as  to  vest  the  title  in  the 
city.  Mayor  and  Aldermen  of  Jer- 
sey City  ads.  Fitzpatrick,  120 


600 


INDEX 


2.  If  the  land  owner  acquiesced  in 
the  taking  the  lands  and  the 
making  of  improvements  tliereon, 
though  no  legal  title  will  pass, 
there  may  be  relief  in  equity.    Jb. 


WARRANTY. 

1.  A  statement  in  a  contract  of  sale, 
descriptive  of  the  thing  sold,  if 
intended  to  be  part  of  the  contract, 
is  a  condition,  on  the  failure  of 
which  the  purchaser  may  repudi- 
ate, or,  if  a  rescission  has  become 
impossible,  it  may  be  treated  as  a 
warranty,  for  the  breach  of  which 
damages  may  be  recovered.  Wol- 
cott,  Johnson  &  Co.  v.  Mount,      262 

2.  It  is  a  question  of  fact,  to  be  deter- 
mined from  all  the  circumstances 
of  the  case,  whether  a  representa- 
tion, descriptive  of  the  articles  sold 
by  a  name  by  which  it  is  known 
in  the  market,  is  an  expression  of 
judgment  or  opinion  only,  or  was 
intended  as  a  warranty.  lb. 

3.  M.,  a  market  gardener,  applied  to 
"VV.  &  Co.,  merchants,  who  kept 
agricultural  seeds  for  sale  for 
"early  strap-leafed  red-top  tur- 
nip seed."  W.  showed  him  the 
seed  which  he  said  was  that  kind, 
and  sold  it  to  him  as  such.  M. 
informed  W.,  at  the  time  of  the 
purchase,  that  he  wanted  that  kind 
of  seed  to  raise  a  crop  for  the  early 
market.  M.  sowed  the  seed,  and 
it  turned  out  to  have  been  another 
kind  of  turnip  seed,  of  an  inferior 
quality.  The  representation  was 
made  in  good  faith,  W.  &  Co.  hav- 
ing purchased  the  seed  as  early 
strap-leafed  red-top  turnip  seed. 
In  an  action  for  breach  ^of  war- 
ranty— Held  on  certiorari— 
1.  That  tiie  question  whether  the 
statements  were  merely  an  expres- 
sion of  opinion  or  a  warranty,  was 
one  of  fact  in  the  court  below,  and 


the  evidence  tending  to  show  that 
a  warranty  was  made,  the  finding 
could  not  be  reviewed. 
2.  That  the  measure  of  damage 
was  the  difference  between  the 
market  va'ue  of  the  crop  raised 
and  the  same  crop  from  the  seed 
ordered.  2  b. 


WILL. 

The  testator,  by  iiis  will,  gave  hia 
real  and  personal  estate  to  hia 
widow,  in  general  terms,  and  by  a 
subsequent  clause,  he  gave  and 
bequeathed  to  her  one-third  of  all 
his  estate  "that  may  remain  at  the 
time  of  her  death,  for  to  dispose 
of  as  she  may  see  proper."  The 
remaining  two-thirds,  after  certain 
specific  bequests,  he  directed  to  be 
divided  in  equal  shares  among  his 
sisters  and  the  heirs  of  a  deceased 
brother.  Held,  that  the  widow 
took  an  estate  in  fee  simple  in  the 
one-third  of  the  lands.  Downey  v. 
Borden,  460 

See  Devise. 
Evidence. 


WRIT  OF  ERROR. 

,  The  fifteenth  section  of  the  act  re- 
specting writs  of  error  {Nix.  I}ig. 
289)  applies  to  criminal  cases.  A 
writ  of  error  in  a  criminal  case 
must  be  sued  out  within  three 
years  after  judgment  pronounced. 
State  V.  Holmes,  62 

.  When  I.  judge  at  a  circuit,  on  a 
Supreme  Court  issue,  allows  an 
amendment,  changing  the  action 
from  covrer»ani  to  assumpsit — Held, 
that  such  act  is  discr<stienary,  and 
is  not  the  subject  of  %  writ  of 
error.  UivUeo.  ifuUet  Watch  Co.  v. 
Learned,  42^ 


-,"  ,''i'f,t-„'i'BnAHY  FACIUTY 


D     000  551  701 


m 


